Certain Covenants of the Company. (a) The Company shall take such steps as are necessary to cause the Company to continue to have sufficient authorized and unissued shares of Common Stock reserved in order to permit the exercise of the unexercised and un-expired portion of this Warrant, if any. (b) The Company covenants and agrees that all Warrant Shares issued upon the due exercise of this Warrant will, upon issuance in accordance with the terms hereof, be duly authorized, validly issued, fully paid and non-assessable and free and clear of all taxes, liens, charges, and security interests created by the Company with respect to the issuance thereof. (c) The Company will pay all documentary stamp taxes, if any, attributable to the initial issuance of Warrant Shares upon the exercise of this Warrant; provided, that the Company shall not be required to pay any tax which may be payable in respect of any transfer involved in the issue of this Warrant or of any certificates for Warrant Shares in a name other than that of the Holder upon the exercise of this Warrant, and the Company shall not be required to issue or deliver such certificates unless or until the person or persons requesting the issuance thereof shall have paid to the Company the amount of such tax, or shall have established to the satisfaction of the Company that such tax has been paid. (d) This Warrant and, when so issued, the shares of Common Stock which may be issued upon exercise of the Warrants, will have been issued pursuant to an available exemption from registration under the Securities Act. (e) The Company covenants and agrees that if it fails (i) to register the Warrant Shares as provided in a Registration Rights Agreement between the Holder and the Company, dated of even date herewith, or (ii) to issue the shares of Common Stock upon the proper exercise of the Warrant, then the Holder may immediately commence an action for specific performance.
Appears in 6 contracts
Samples: Securities Purchase Agreement (Commodore Applied Technologies Inc), Warrant Agreement (Commodore Applied Technologies Inc), Securities Purchase Agreement (Commodore Applied Technologies Inc)
Certain Covenants of the Company. (a) The Company shall take such steps as are necessary to cause the Company to continue to have sufficient authorized and unissued shares of Common Stock reserved in order to permit the exercise of the unexercised and un-expired portion of this Warrant, if any.
(b) The Company covenants and agrees that all Warrant Shares issued upon the due exercise of this Warrant will, upon issuance in accordance with the terms hereof, be duly authorized, validly issued, fully paid and non-assessable and free and clear of all taxes, liens, charges, and security interests created by the Company with respect to the issuance thereof.
(c) The Company will pay all documentary stamp taxes, if any, attributable to the initial issuance of Warrant Shares upon the exercise of this Warrant; provided, that the Company shall not be required to pay any tax shares which may be payable in respect of any transfer involved in the issue of this Warrant or of any certificates for Warrant Shares in a name other than that of the Holder issued upon the exercise of this Warrant, will, upon issuance, be duly and validly issued, fully paid and nonassessable; and will from time to time take all such action as may be requisite to assure that the par value per share of the Common Stock is at all times equal to or less than the then effective purchase price per share of the Common Stock issuable pursuant to the Warrant. The Company further covenants and agrees that, during the period within which the rights represented by this Warrant may be exercised, the Company will at all times have authorized, and reserved for the purpose of issuance upon exercise of the purchase rights evidenced by this Warrant, a sufficient number of shares of its Common Stock to provide for the exercise of the rights represented by this Warrant. The Company also further covenants that it will not, by amendment of its Certificate of Incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issuance or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the holder of this Warrant against impairment. Without limiting the generality of the foregoing, the Company (a) will not increase the par value of any shares of stock issuable upon the exercise of this Warrant above the amount payable therefor on such exercise, and (b) will take all action that may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of stock on the exercise of this Warrant. So long as this Warrant is outstanding, the Company shall not be required grant to issue or deliver such certificates unless or until the any person or persons requesting the issuance thereof shall have paid entity any anti-dilution rights on terms more favorable than those granted to the Company the amount of such tax, or shall have established to the satisfaction of the Company that such tax has been paidHolder hereunder.
(d) This Warrant and, when so issued, the shares of Common Stock which may be issued upon exercise of the Warrants, will have been issued pursuant to an available exemption from registration under the Securities Act.
(e) The Company covenants and agrees that if it fails (i) to register the Warrant Shares as provided in a Registration Rights Agreement between the Holder and the Company, dated of even date herewith, or (ii) to issue the shares of Common Stock upon the proper exercise of the Warrant, then the Holder may immediately commence an action for specific performance.
Appears in 4 contracts
Samples: Selling Agent Warrant (Medical Device Alliance Inc), Promissory Note Warrant (Miravant Medical Technologies), Selling Agent Warrant (Medical Device Alliance Inc)
Certain Covenants of the Company. The Company covenants with each Underwriter as follows:
(a) The During the period described in the following sentence of this Section 4(a), the Company shall take advise the Representatives promptly of any proposal to amend or supplement the Registration Statement, the Time of Sale Prospectus or the Prospectus (except by documents filed under the Exchange Act) and will not effect such steps amendment or supplement (except by documents filed under the Exchange Act) without the consent of the Representatives, which consent will not be unreasonably withheld. If, at any time after the public offering of the Certificates, the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales of the Certificates by an Underwriter or a dealer, any event shall occur as are a result of which it is necessary to cause amend or supplement the Prospectus so that the statements therein will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, contain a material misstatement or omission, or if it is necessary to amend the Registration Statement or amend or supplement the Prospectus to comply with law, the Company shall prepare and furnish at its expense to continue the Underwriters and to the dealers (whose names and addresses the Representatives will furnish to the Company) to which Certificates may have sufficient authorized and unissued shares of Common Stock reserved in order to permit been sold by the exercise Representatives on behalf of the unexercised Underwriters and un-expired portion to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of this Warrantthe circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, if anycontain a material misstatement or omission, or amendments or supplements to the Registration Statement or the Prospectus so that the Registration Statement or the Prospectus, as so amended or supplemented, will comply with law and cause such amendments or supplements to be filed promptly with the Commission.
(b) The Company covenants and agrees that all Warrant Shares issued upon During the due exercise of this Warrant willperiod mentioned in paragraph (a) above, upon issuance in accordance with the terms hereof, be duly authorized, validly issued, fully paid and non-assessable and free and clear of all taxes, liens, charges, and security interests created by the Company shall notify each Underwriter immediately of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any supplement to the Prospectus or any document that would as a result thereof be incorporated by reference in the Prospectus, (iii) the receipt of any comments from the Commission with respect to the Registration Statement or the Prospectus, (iv) any request by the Commission to the Company for any amendment to the Registration Statement or any supplement to the Prospectus or for additional information relating thereto or to any document incorporated by reference in the Prospectus and (v) receipt by the Company of any notice of the issuance thereofby the Commission of any stop order suspending the effectiveness of the Registration Statement, the suspension of the qualification of the Certificates for offering or sale in any jurisdiction, or the institution or threatening of any proceeding for any of such purposes; and the Company agrees to use every reasonable effort to prevent the issuance of any such stop order and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment and the Company shall endeavor (subject to the proviso to Section 4(g)), in cooperation with the Underwriters, to prevent the issuance of any such stop order suspending such qualification and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(c) The During the period mentioned in paragraph (a) above, the Company will pay all documentary stamp taxes, if any, attributable furnish to the initial issuance of Warrant Shares upon the exercise of this Warrant; provided, that the Company shall not be required to pay any tax which may be payable in respect of any transfer involved in the issue of this Warrant or of any certificates for Warrant Shares in a name other than that each Underwriter as many conformed copies of the Holder upon Registration Statement (as originally filed), the exercise Time of this WarrantSale Prospectus, the Prospectus, and the Company shall not be required all amendments and supplements to issue such documents (excluding all exhibits and documents filed therewith or deliver incorporated by reference therein) and as many conformed copies of all consents and certificates of experts, in each case as soon as available and in such certificates unless or until the person or persons requesting the issuance thereof shall have paid to the Company the amount of such tax, or shall have established to the satisfaction of the Company that such tax has been paidquantities as each Underwriter reasonably requests.
(d) This Warrant and, when so issuedPromptly following the execution of this Agreement, the shares of Common Stock which may be issued upon exercise Company will prepare a Prospectus that complies with the Securities Act and that sets forth the face amount of the WarrantsCertificates and their terms (including, without limitation, terms of the Escrow Receipts attached to the Certificates) not otherwise specified in the preliminary prospectus or the Basic Prospectus included in the Registration Statement, the name of each Underwriter and the face amount of the Certificates that each severally has agreed to purchase, the name of each Underwriter, if any, acting as representative of the Underwriters in connection with the offering, the price at which the Certificates are to be purchased by the Underwriters from the Trustee, any initial public offering price, any selling concession and reallowance and any delayed delivery arrangements, and such other information as the Representatives and the Company deem appropriate in connection with the offering of the Certificates. The Company will have been issued timely transmit copies of the Prospectus to the Commission for filing pursuant to an available exemption from registration Rule 424 under the Securities Act.
(e) The Company covenants shall furnish to each Underwriter a copy of each free writing prospectus relating to the offering of the Certificates prepared by or on behalf of, used by, or referred to by the Company and agrees that shall not use or refer to any proposed free writing prospectus to which the Representatives reasonably object.
(f) If the Time of Sale Prospectus or any “issuer free writing prospectus” is being used to solicit offers to buy the Certificates at a time when a Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus or any “issuer free writing prospectus” in order to make the statements therein, in the light of the circumstances when it is delivered to a prospective purchaser, not misleading in any material respect, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus or any “issuer free writing prospectus” conflicts with the information contained in the Registration Statement then on file, or if it fails is necessary to amend or supplement the Time of Sale Prospectus or any “issuer free writing prospectus” to comply with applicable law, the Company shall forthwith prepare, file promptly with the Commission and furnish, at the Company’s expense, to the Underwriters and to the dealers (whose names and addresses the Representatives will furnish to the Company) to which Certificates may have been sold by the Representatives on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Time of Sale Prospectus or such “issuer free writing prospectus” so that the statements in the Time of Sale Prospectus or such “issuer free writing prospectus” as so amended or supplemented will not, in the light of the circumstances when it is delivered to a prospective purchaser, be misleading in any material respect or so that the Time of Sale Prospectus or such “issuer free writing prospectus”, as so amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus or such “issuer free writing prospectus”, as amended or supplemented, will comply with applicable law.
(g) The Company shall, in cooperation with the Underwriters, endeavor to arrange for the qualification of the Certificates for offer and sale under the applicable securities or “blue sky” laws of such jurisdictions in the United States as the Representatives reasonably designate and will endeavor to maintain such qualifications in effect so long as required for the distribution of such Certificates; provided that the Company shall not be required to (i) to register the Warrant Shares qualify as provided a foreign corporation or as a dealer in a Registration Rights Agreement between the Holder and the Companysecurities, dated of even date herewith, or (ii) file a general consent to issue service of process or (iii) subject itself to taxation in any such jurisdiction.
(h) During the shares period of Common Stock ten years after the Closing Date, the Company will promptly furnish to each Underwriter, upon the proper exercise request, copies of all Annual Reports on Form 10-K and any definitive proxy statement of the WarrantCompany (including any successor by merger of the Company) filed with the Commission; provided that (a) filing such documents with the Commission or (b) providing a website address at which such Annual Reports and any such definitive proxy statements may be accessed will satisfy this clause (h).
(i) If the third anniversary of the initial effective date of the Registration Statement occurs before all the Certificates have been sold by the Underwriters, then prior to the Holder third anniversary, the Company shall file a new shelf registration statement and take any other action necessary to permit the public offering of the Certificates to continue without interruption, in which case references herein to the Registration Statement shall include the new registration statement as it shall become effective.
(j) Between the date of this Agreement and the Closing Date, the Company shall not, without the prior written consent of the Representatives, offer, sell or enter into any agreement to sell (as public debt securities registered under the Securities Act (other than the Certificates) or as debt securities which may immediately commence an action be resold in a transaction exempt from the registration requirements of the Securities Act in reliance on Rule 144A thereunder and which are marketed through the use of a disclosure document containing substantially the same information as a prospectus for specific performancesimilar debt securities registered under the Securities Act), any equipment notes, pass through certificates, equipment trust certificates or equipment purchase certificates secured by aircraft owned by the Company (or rights relating thereto).
(k) The Company shall prepare a final term sheet relating to the offering of the Certificates, containing only information that describes the final terms of the Certificates or the offering in a form consented to by the Representatives and shall file such final term sheet within the period required by Rule 433(d)(5)(ii) under the Securities Act following the date the final terms have been established for the offering of the Certificates.
Appears in 4 contracts
Samples: Underwriting Agreement (United Airlines, Inc.), Underwriting Agreement (United Airlines, Inc.), Underwriting Agreement (United Airlines, Inc.)
Certain Covenants of the Company. (a) The Company shall take such steps as are necessary to cause the Company to continue to have sufficient authorized and unissued shares of Common Stock reserved in order to permit the exercise of the unexercised and un-expired portion of this Warrant, if any.
(b) The Company covenants and agrees that all Warrant Shares issued upon the due exercise of this Warrant will, upon issuance in accordance with the terms hereof, be duly authorized, validly issued, fully paid and non-assessable and free and clear of all taxes, liens, charges, and security interests created by the Company with respect to the issuance thereof.
(c) The Company will pay all documentary stamp taxes, if any, attributable to the initial issuance of Warrant Shares upon the exercise of this Warrant; provided, that the Company shall not be required to pay any tax which may be payable in respect of any transfer involved in the issue of this Warrant or of any certificates for Warrant Shares in a name other than that of the Holder upon the exercise of this Warrant, and the Company shall not be required to issue or deliver such certificates unless or until the person or persons requesting the issuance thereof shall have paid to the Company the amount of such tax, or shall have established to the satisfaction of the Company that such tax has been paid.
(d) This Warrant and, when so issued, the shares of Common Stock which may be issued upon exercise of the Warrants, will have been issued pursuant to an available exemption from registration under the Securities Act.
(e) The Company covenants and agrees that if it fails (i) to register the Warrant Shares as provided in a Registration Rights Agreement between the Holder and the Company, dated of even date herewith, or (ii) to issue the shares of Common Stock upon the proper exercise of the Warrant, then the Holder may immediately commence an action for specific performance.
(f) The Company shall not, by any action, including, without limitation, such as by amending its certificate of incorporation or through any reorganization, reclassification, merger, consolidation, sale, transfer, disposition, dissolution, winding up, dividend, distribution, issue or sale of securities or other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will, at all times, and in good faith, assist in the carrying out of all such terms and in the taking of all such actions as may be necessary or appropriate to protect the rights of the Holder against impairment.
Appears in 3 contracts
Samples: Warrant Agreement (Commodore Applied Technologies Inc), Warrant Agreement (Commodore Applied Technologies Inc), Warrant Agreement (Commodore Applied Technologies Inc)
Certain Covenants of the Company. (a) The Company shall take such steps A. So long as are necessary to cause the Company to continue to have sufficient authorized any unexpired Warrants remain outstanding and unissued shares of Common Stock reserved if required in order to permit comply with the exercise Securities Act of 1933, as amended (the unexercised and un-expired portion of this Warrant"Act"), if any.
(b) The the Company covenants and agrees that all Warrant Shares issued upon it will file such post-effective amendments to the due exercise of this Warrant will, upon issuance in accordance with registration statement filed pursuant to the terms hereof, be duly authorized, validly issued, fully paid and non-assessable and free and clear of all taxes, liens, charges, and security interests created by the Company Act with respect to the issuance thereof.
Warrants (cFile No. 333-_____) (or such other registration statements or post-effective amendments or supplements) as may be necessary to permit the Company to deliver to each person exercising a Warrant a prospectus meeting the requirements of Section 10(a)(3) of the Act and otherwise complying therewith, and will deliver such a prospectus to each such person. The Company further covenants and agrees that it will pay obtain and keep effective all documentary stamp taxespermits, if anyconsents and approvals of governmental agencies and authorities, attributable and will use its best efforts to the initial issuance of Warrant Shares upon the exercise of this Warrant; provided, that the Company shall not be required to pay any tax take all action which may be payable in respect necessary to qualify the Shares for sale under the securities laws of any transfer involved in the issue of this Warrant or of any certificates for Warrant Shares in a name other than that such of the Holder upon United States, as may be necessary to permit the free exercise of this Warrantthe Warrants, and the Company shall not be required to issue or deliver such certificates unless or until the person or persons requesting the issuance thereof shall have paid to the Company the amount of such taxissuance, or shall have established to the satisfaction sale, transfer and delivery of the Company that such tax has been paid.
(d) This Warrant and, when so issued, the shares of Common Stock which may be Shares issued upon exercise of the Warrants, will have been issued pursuant and to an available exemption from registration under maintain such qualifications during the Securities Actentire period in which the Warrants are exercisable.
(e) B. The Company covenants and agrees that if it fails shall take all such action as may be necessary to ensure that all Shares will at the time of delivery of certificates for such Shares (isubject to payment of the warrant exercise price) to register the Warrant Shares as provided in a Registration Rights Agreement between the Holder be duly and validly authorized and issued and fully paid and nonassessable Shares, free from any preemptive rights and taxes, liens, charges and security interests created by or imposed upon the Company, dated of even date herewith, .
C. The Company covenants and agrees that it will take all action which may be necessary to cause the Shares to be duly listed on the New York Stock Exchange or (ii) to issue any securities exchange on which the other shares of Common Stock upon of the proper Company are listed or on the National Market System of NASDAQ at the dates of exercise of the Warrant, then the Holder may immediately commence an action for specific performanceWarrants.
Appears in 3 contracts
Samples: Common Stock Warrant Agreement (G&k Services Inc), Common Stock Warrant Agreement (Fuller H B Co), Common Stock Warrant Agreement (Fingerhut Companies Inc)
Certain Covenants of the Company. The Company covenants with each Underwriter as follows:
(a) The During the period described in the following sentence of this Section 4(a), the Company shall take advise the Representatives promptly of any proposal to amend or supplement the Registration Statement, the Time of Sale Prospectus or the Prospectus (except by documents filed under the Exchange Act) and will not effect such steps amendment or supplement (except by documents filed under the Exchange Act) without the consent of the Representatives, which consent will not be unreasonably withheld. If, at any time after the public offering of the Certificates, the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is required by law to be delivered in connection with sales of the Certificates by an Underwriter or a dealer, any event shall occur as are a result of which it is necessary to cause amend or supplement the Prospectus so that the statements therein will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, contain a material misstatement or omission, or if it is necessary to amend the Registration Statement or amend or supplement the Prospectus to comply with law, the Company shall prepare and furnish at its expense to continue the Underwriters and to the dealers (whose names and addresses the Representatives will furnish to the Company) to which Certificates may have sufficient authorized and unissued shares of Common Stock reserved in order to permit been sold by the exercise Representatives on behalf of the unexercised Underwriters and un-expired portion to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of this Warrantthe circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) under the Securities Act) is delivered to a purchaser, if anycontain a material misstatement or omission, or amendments or supplements to the Registration Statement or the Prospectus so that the Registration Statement or the Prospectus, as so amended or supplemented, will comply with law and cause such amendments or supplements to be filed promptly with the Commission.
(b) The Company covenants and agrees that all Warrant Shares issued upon During the due exercise of this Warrant willperiod mentioned in paragraph (a) above, upon issuance in accordance with the terms hereof, be duly authorized, validly issued, fully paid and non-assessable and free and clear of all taxes, liens, charges, and security interests created by the Company shall notify each Underwriter immediately of (i) the effectiveness of any amendment to the Registration Statement, (ii) the transmittal to the Commission for filing of any supplement to the Prospectus or any document that would as a result thereof be incorporated by reference in the Prospectus, (iii) the receipt of any comments from the Commission with respect to the Registration Statement or the Prospectus, (iv) any request by the Commission to the Company for any amendment to the Registration Statement or any supplement to the Prospectus or for additional information relating thereto or to any document incorporated by reference in the Prospectus and (v) receipt by the Company of any notice of the issuance thereofby the Commission of any stop order suspending the effectiveness of the Registration Statement, the suspension of the qualification of the Certificates for offering or sale in any jurisdiction, or the institution or threatening of any proceeding for any of such purposes; and the Company agrees to use every reasonable effort to prevent the issuance of any such stop order and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment and the Company shall endeavor (subject to the proviso to Section 4(g)), in cooperation with the Underwriters, to prevent the issuance of any such stop order suspending such qualification and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment.
(c) The During the period mentioned in paragraph (a) above, the Company will pay all documentary stamp taxes, if any, attributable furnish to the initial issuance of Warrant Shares upon the exercise of this Warrant; provided, that the Company shall not be required to pay any tax which may be payable in respect of any transfer involved in the issue of this Warrant or of any certificates for Warrant Shares in a name other than that each Underwriter as many conformed copies of the Holder upon Registration Statement (as originally filed), the exercise Time of this WarrantSale Prospectus, the Prospectus, and the Company shall not be required all amendments and supplements to issue such documents (excluding all exhibits and documents filed therewith or deliver incorporated by reference therein) and as many conformed copies of all consents and certificates of experts, in each case as soon as available and in such certificates unless or until the person or persons requesting the issuance thereof shall have paid to the Company the amount of such tax, or shall have established to the satisfaction of the Company that such tax has been paidquantities as each Underwriter reasonably requests.
(d) This Warrant and, when so issuedPromptly following the execution of this Agreement, the shares of Common Stock which may be issued upon exercise Company will prepare a Prospectus that complies with the Securities Act and that sets forth the face amount of the WarrantsCertificates and their terms (including, without limitation, terms of the Escrow Receipts attached to the Certificates) not otherwise specified in the preliminary prospectus or the Basic Prospectus included in the Registration Statement, the name of each Underwriter and the face amount of the Certificates that each severally has agreed to purchase, the name of each Underwriter, if any, acting as a representative of the Underwriters in connection with the offering, the price at which the Certificates are to be purchased by the Underwriters from the Trustee, any initial public offering price, any selling concession and reallowance and any delayed delivery arrangements, and such other information as the Representatives and the Company deem appropriate in connection with the offering of the Certificates. The Company will have been issued timely transmit copies of the Prospectus to the Commission for filing pursuant to an available exemption from registration Rule 424 under the Securities Act.
(e) The Company covenants shall furnish to each Underwriter a copy of each free writing prospectus relating to the offering of the Certificates prepared by or on behalf of, used by, or referred to by the Company and agrees that shall not use or refer to any proposed free writing prospectus to which the Representatives reasonably object.
(f) If the Time of Sale Prospectus or any “issuer free writing prospectus” is being used to solicit offers to buy the Certificates at a time when a Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus or any “issuer free writing prospectus” in order to make the statements therein, in the light of the circumstances when it is delivered to a prospective purchaser, not misleading in any material respect, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus or any “issuer free writing prospectus” conflicts with the information contained in the Registration Statement then on file, or if it fails is necessary to amend or supplement the Time of Sale Prospectus or any “issuer free writing prospectus” to comply with applicable law, the Company shall forthwith prepare, file promptly with the Commission and furnish, at the Company’s expense, to the Underwriters and to the dealers (whose names and addresses the Representatives will furnish to the Company) to which Certificates may have been sold by the Representatives on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Time of Sale Prospectus or such “issuer free writing prospectus” so that the statements in the Time of Sale Prospectus or such “issuer free writing prospectus” as so amended or supplemented will not, in the light of the circumstances when it is delivered to a prospective purchaser, be misleading in any material respect or so that the Time of Sale Prospectus or such “issuer free writing prospectus”, as so amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus or such “issuer free writing prospectus”, as amended or supplemented, will comply with applicable law.
(g) The Company shall, in cooperation with the Underwriters, endeavor to arrange for the qualification of the Certificates for offer and sale under the applicable securities or “blue sky” laws of such jurisdictions in the United States as the Representatives reasonably designate and will endeavor to maintain such qualifications in effect so long as required for the distribution of such Certificates; provided that the Company shall not be required to (i) to register the Warrant Shares qualify as provided a foreign corporation or as a dealer in a Registration Rights Agreement between the Holder and the Companysecurities, dated of even date herewith, or (ii) file a general consent to issue service of process or (iii) subject itself to taxation in any such jurisdiction.
(h) During the shares period of Common Stock ten years after the Closing Date, the Company will promptly furnish to each Underwriter, upon the proper exercise request, copies of all Annual Reports on Form 10-K and any definitive proxy statement of the WarrantCompany (including any successor by merger of the Company) filed with the Commission; provided that (a) filing such documents with the Commission or (b) providing a website address at which such Annual Reports and any such definitive proxy statements may be accessed will satisfy this clause (h).
(i) If the third anniversary of the initial effective date of the Registration Statement occurs before all the Certificates have been sold by the Underwriters, then prior to the Holder third anniversary, the Company shall file a new shelf registration statement and take any other action necessary to permit the public offering of the Certificates to continue without interruption, in which case references herein to the Registration Statement shall include the new registration statement as it shall become effective.
(j) Between the date of this Agreement and the Closing Date, the Company shall not, without the prior written consent of the Representatives, offer, sell or enter into any agreement to sell (as public debt securities registered under the Securities Act (other than the Certificates or a class of pass through certificates junior to the Certificates and related equipment notes) or as debt securities which may immediately commence an action be resold in a transaction exempt from the registration requirements of the Securities Act in reliance on Rule 144A thereunder and which are marketed through the use of a disclosure document containing substantially the same information as a prospectus for specific performancesimilar debt securities registered under the Securities Act), any equipment notes, pass through certificates, equipment trust certificates or equipment purchase certificates secured by aircraft owned by the Company (or rights relating thereto).
(k) The Company shall prepare a final term sheet relating to the offering of the Certificates, containing only information that describes the final terms of the Certificates or the offering in a form consented to by the Representatives and shall file such final term sheet within the period required by Rule 433(d)(5)(ii) under the Securities Act following the date the final terms have been established for the offering of the Certificates.
Appears in 3 contracts
Samples: Underwriting Agreement (United Airlines, Inc.), Underwriting Agreement (United Airlines, Inc.), Underwriting Agreement (United Airlines, Inc.)
Certain Covenants of the Company. (ai) The Company shall, prior to issuance of any Securities hereunder, and from time to time as may be necessary, reserve out of its authorized but unissued Common Stock or shares of Common Stock held in treasury, sufficient number of shares of Common Stock, free from any preemptive or other similar rights, to permit the conversion of all the Securities then outstanding, subject to adjustment as described under Section 9.02. For purposes of this Section 9.01(f), the number of shares of Common Stock that shall be deliverable upon the conversion of all outstanding Securities shall be computed as if at the time of computation all such outstanding shares were held by a single Holder.
(ii) All shares of Common Stock delivered upon conversion of the Securities shall be newly issued shares or treasury shares, shall be duly and validly issued and fully paid and nonassessable and shall be free from preemptive rights and free of any lien, adverse claim, security interest or other encumbrance (other than liens, charges, security interests and other encumbrances created by the Holders).
(iii) The Company shall take such steps as are necessary endeavor promptly to cause comply with all federal and state securities laws regulating the Company to continue to have sufficient authorized issuance and unissued delivery of shares of Common Stock reserved in order to permit upon the exercise conversion of the unexercised and un-expired portion of this WarrantSecurities, if any.
(biv) The Company covenants and agrees Before taking any action which would cause an adjustment increasing the Conversion Rate to an amount that all Warrant Shares issued upon would cause the due exercise Conversion Price to be reduced below the then par value per share of this Warrant will, upon issuance in accordance with the terms hereof, be duly authorized, validly issued, fully paid and non-assessable and free and clear of all taxes, liens, charges, and security interests created by the Company with respect to the issuance thereof.
(c) The Company will pay all documentary stamp taxesCommon Stock, if any, attributable to the initial issuance of Warrant Shares upon the exercise of this Warrant; provided, that the Company shall not be required to pay any tax which may be payable in respect of any transfer involved in the issue of this Warrant or of any certificates for Warrant Shares in a name other than that of the Holder upon the exercise of this Warrant, and the Company shall not be required to issue or deliver such certificates unless or until the person or persons requesting the issuance thereof shall have paid to the Company the amount of such tax, or shall have established to the satisfaction of the Company that such tax has been paid.
(d) This Warrant and, when so issued, the shares of Common Stock which may be issued issuable upon exercise conversion of the WarrantsSecurities, the Company will have been issued pursuant to an available exemption from registration under take all corporate action which may, in the Securities Actopinion of its counsel, be necessary in order that the Company may validly and legally issue shares of such Common Stock at such adjusted Conversion Rate.
(ev) The If at any time the Common Stock shall be listed on the New York Stock Exchange or any other national or regional securities exchange or automated quotation system, the Company will, if permitted by the rules of such exchange or automated quotation system, list and keep listed, so long as the Common Stock shall be so listed on such exchange or automated quotation system, all the Common Stock issuable upon conversion of all outstanding Securities; provided, however, that if the rules of such exchange or automated quotation system permit the Company to defer the listing of such Common Stock until the first conversion of Securities into Common Stock in accordance with the provisions hereof, the Company covenants and agrees that if it fails (i) to register the Warrant Shares as provided in a Registration Rights Agreement between the Holder and the Company, dated of even date herewith, or (ii) to issue the shares of list such Common Stock issuable upon the proper exercise conversion of the Warrant, then Securities in accordance with the Holder may immediately commence an action for specific performancerequirements of such exchange or automated quotation system at such time.
Appears in 2 contracts
Samples: Second Supplemental Indenture (Smithfield Foods Inc), Second Supplemental Indenture (Smithfield Foods Inc)
Certain Covenants of the Company. (a) The Company shall take such steps A. So long as are necessary to cause the Company to continue to have sufficient authorized any unexpired Warrants remain outstanding and unissued shares of Common Stock reserved if required in order to permit comply with the exercise Securities Act of 1933, as amended (the unexercised and un-expired portion of this Warrant"Act"), if any.
(b) The the Company covenants and agrees that all Warrant Shares issued upon it will file such post-effective amendments to the due exercise of this Warrant will, upon issuance in accordance with registration statement filed pursuant to the terms hereof, be duly authorized, validly issued, fully paid and non-assessable and free and clear of all taxes, liens, charges, and security interests created by the Company Act with respect to the issuance thereof.
Warrants (cFile No. 33-_____) (or such other registration statements or post-effective amendments or supplements) as may be necessary to permit the Company to deliver to each person exercising a Warrant a prospectus meeting the requirements of Section 10(a)(3) of the Act and otherwise complying therewith, and will deliver such a prospectus to each such person. The Company further covenants and agrees that it will pay obtain and keep effective all documentary stamp taxespermits, if anyconsents and approvals of governmental agencies and authorities, attributable and will use its best efforts to the initial issuance of Warrant Shares upon the exercise of this Warrant; provided, that the Company shall not be required to pay any tax take all action which may be payable in respect necessary to qualify the Shares for sale under the securities laws of any transfer involved in the issue of this Warrant or of any certificates for Warrant Shares in a name other than that such of the Holder upon United States, as may be necessary to permit the free exercise of this Warrantthe Warrants, and the Company shall not be required to issue or deliver such certificates unless or until the person or persons requesting the issuance thereof shall have paid to the Company the amount of such taxissuance, or shall have established to the satisfaction sale, transfer and delivery of the Company that such tax has been paid.
(d) This Warrant and, when so issued, the shares of Common Stock which may be Shares issued upon exercise of the Warrants, will have been issued pursuant and to an available exemption from registration under maintain such qualifications during the Securities Actentire period in which the Warrants are exercisable.
(e) B. The Company covenants and agrees that if it fails shall take all such action as may be necessary to ensure that all Shares will at the time of delivery of certificates for such Shares (isubject to payment of the warrant exercise price) to register the Warrant Shares as provided in a Registration Rights Agreement between the Holder be duly and validly authorized and issued and fully paid and nonassessable Shares, free from any preemptive rights and taxes, liens, charges and security interests created by or imposed upon the Company, dated of even date herewith, .
C. The Company covenants and agrees that it will take all action which may be necessary to cause the Shares to be duly listed on the Nasdaq National Market or (ii) to issue any securities exchange on which the other shares of Common Stock upon the proper exercise of the Warrant, then the Holder may immediately commence an action for specific performanceCompany are listed.
Appears in 2 contracts
Samples: Common Stock Warrant Agreement (DMC Stratex Networks Inc), Common Stock Warrant Agreement (Digital Microwave Corp /De/)
Certain Covenants of the Company. (a) The Company shall take such steps A. So long as are necessary to cause the Company to continue to have sufficient authorized any unexpired Warrants remain outstanding and unissued shares of Common Stock reserved if required in order to permit comply with the exercise Securities Act of 1933, as amended (the unexercised and un-expired portion of this Warrant"Act"), if any.
(b) The the Company covenants and agrees that all Warrant Shares issued upon it will file such post-effective amendments to the due exercise of this Warrant will, upon issuance in accordance with registration statement filed pursuant to the terms hereof, be duly authorized, validly issued, fully paid and non-assessable and free and clear of all taxes, liens, charges, and security interests created by the Company Act with respect to the issuance thereof.
Warrants (cor such other registration statements or post-effective amendments or supplements) as may be necessary to permit the Company to deliver to each person exercising a Warrant a prospectus meeting the requirements of Section 10(a)(3) of the Act and otherwise complying therewith, and will deliver such a prospectus to each such person. The Company further covenants and agrees that it will pay obtain and keep effective all documentary stamp taxespermits, if anyconsents and approvals of governmental agencies and authorities, attributable and will use its best efforts to the initial issuance of Warrant Shares upon the exercise of this Warrant; provided, that the Company shall not be required to pay any tax take all action which may be payable in respect necessary to qualify the Shares for sale under the securities laws of any transfer involved in the issue of this Warrant or of any certificates for Warrant Shares in a name other than that such of the Holder upon United States, as may be necessary to permit the free exercise of this Warrantthe Warrants, and the Company shall not be required to issue or deliver such certificates unless or until the person or persons requesting the issuance thereof shall have paid to the Company the amount of such taxissuance, or shall have established to the satisfaction sale, transfer and delivery of the Company that such tax has been paid.
(d) This Warrant and, when so issued, the shares of Common Stock which may be Shares issued upon exercise of the Warrants, will have been issued pursuant and to an available exemption from registration under maintain such qualifications during the Securities Actentire period in which the Warrants are exercisable.
(e) B. The Company covenants and agrees that if it fails shall take all such action as may be necessary to ensure that all Shares will at the time of delivery of certificates for such Shares (i) subject to register payment of the Warrant Shares as provided in a Registration Rights Agreement between the Holder Exercise Price) be duly and validly authorized and issued and fully paid and nonassessable Shares, free from any preemptive rights and taxes, liens, charges and security interests created by or imposed upon the Company, dated of even date herewith, .
C. The Company covenants and agrees that it will take all action which may be necessary to cause the Shares to be duly listed on the New York Stock Exchange or (ii) to issue another securities exchange or the interdealer quotation system on which the other [shares of Common Stock upon Common/Preferred Stock] [Depositary Shares] of the proper Company are listed at the dates of exercise of the Warrant, then the Holder may immediately commence an action for specific performanceWarrants.
Appears in 2 contracts
Samples: Warrant Agreement (New Plan Excel Realty Trust Inc), Warrant Agreement (New Plan Realty Trust)
Certain Covenants of the Company. The Company covenants and agrees with the Loan Trustee as follows:
(a) The Company shall take such steps as are necessary to cause On and after the Closing, the Company will cause to continue to have sufficient authorized be done, executed, acknowledged and unissued shares delivered such further acts, conveyances and assurances as the Loan Trustee shall reasonably request for accomplishing the purposes of Common Stock reserved in order to permit this Agreement and the exercise other Operative Documents; provided that any instrument or other document so executed by the Company will not expand any obligations or limit any rights of the unexercised and un-expired portion Company in respect of this Warrant, if anythe transactions contemplated by the Operative Documents.
(b) The Company covenants and agrees that all Warrant Shares issued upon will cause the due exercise of this Warrant will, upon issuance in accordance Indenture (with the terms hereofIndenture Supplement covering the Aircraft attached) to be promptly filed and recorded, be duly authorizedor filed for recording, validly issued, fully paid and non-assessable and free and clear of all taxes, liens, charges, and security interests created by with the Company with respect FAA to the issuance thereofextent permitted under the Transportation Code and the rules and regulations of the FAA thereunder.
(c) The Company, at its expense, will take, or cause to be taken, such action with respect to the recording, filing, re-recording and refiling of the Indenture and any financing statements or other instruments as are necessary to maintain, so long as the Indenture is in effect, the perfection of the security interests created by the Indenture or will furnish the Loan Trustee timely notice of the necessity of such action, together with such instruments, in execution form, and such other information as may be required to enable the Loan Trustee to take such action. In addition, the Company will pay any and all documentary recording, stamp taxes, if any, attributable to the initial issuance of Warrant Shares upon the exercise of this Warrant; provided, that the Company shall not be required to pay any tax which may be and other similar taxes payable in respect the United States, and in any other jurisdiction where the Aircraft is registered, in connection with the execution, delivery, recording, filing, re-recording and refiling of the Indenture or any such financing statements or other instruments. The Company will notify the Loan Trustee of any transfer involved change in its state of incorporation promptly after making such change or in any event within the issue period of this Warrant or time necessary under applicable law to prevent the lapse of any certificates for Warrant Shares in a name other than that perfection (absent refiling) of financing statements filed under the Holder upon the exercise of this Warrant, and the Company shall not be required to issue or deliver such certificates unless or until the person or persons requesting the issuance thereof shall have paid to the Company the amount of such tax, or shall have established to the satisfaction of the Company that such tax has been paidOperative Documents.
(d) This Warrant and, when so issued, the shares of Common Stock which may be issued upon exercise of the Warrants, will have been issued pursuant to an available exemption from registration under the Securities ActThe Company shall at all times maintain its corporate existence except as permitted by Section 6.02(e).
(e) The Company covenants and agrees that if it fails shall not consolidate with or merge into any other Person or convey, transfer or lease substantially all of its assets as an entirety to any Person, unless:
(i) the Person formed by such consolidation or into which the Company is merged or the Person that acquires by conveyance, transfer or lease substantially all of the assets of the Company as an entirety shall, if and to register the Warrant Shares as provided extent required under Section 1110 in order that the Loan Trustee shall continue to be entitled to any benefits of Section 1110 with respect to the Aircraft, be a Registration Rights Agreement between Certificated Air Carrier and shall execute and deliver to the Holder Loan Trustee an agreement containing the assumption by such successor Person of the due and punctual performance and observance of each covenant and condition of the Operative Documents to which the Company is a party to be performed or observed by the Company;
(ii) immediately after giving effect to such transaction, no Event of Default shall have occurred and be continuing; and
(iii) the Company shall have delivered to the Loan Trustee a certificate signed by a Responsible Officer of the Company, dated and an opinion of even date herewithcounsel (which may be the Company's General Counsel or such other internal counsel to the Company as shall be reasonably satisfactory to the Loan Trustee), each stating that such consolidation, merger, conveyance, transfer or lease and the assumption agreement mentioned in clause (i) above comply with this Section 6.02(e) and that all conditions precedent herein provided relating to such transaction have been complied with (except that such opinion need not cover the matters referred to in clause (ii) above and may rely, as to issue the shares factual matters, on a certificate of Common Stock upon the proper exercise an officer of the WarrantCompany) and, then in the Holder case of such opinion, that such assumption agreement has been duly authorized, executed and delivered by such successor Person and is enforceable against such successor Person in accordance with its terms, except as the same may immediately commence be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the rights of creditors generally and by general principles of equity. Upon any consolidation or merger, or any conveyance, transfer or lease of substantially all of the assets of the Company as an entirety in accordance with this Section 6.02(e), the successor Person formed by such consolidation or into which the Company is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Agreement and the other Operative Documents with the same effect as if such successor Person had been named as the Company herein.
(f) The Company shall, for as long as and to the extent required under Section 1110 in order that the Loan Trustee shall be entitled to any of the benefits of Section 1110 with respect to the Aircraft, remain a Certificated Air Carrier.
(g) The Company shall not issue Series E Equipment Notes pursuant to the Indenture, unless it shall have received Ratings Confirmation (as defined in the Intercreditor Agreement). If Series E Equipment Notes are initially issued to other than the Pass Through Trustee for the Class E Certificates, the Company will cause such Series E Equipment Notes to be subject to the provisions of the Intercreditor Agreement that allow the "Controlling Party" (as defined in the Intercreditor Agreement), during the continuance of an "Indenture Event of Default" (as defined in the Intercreditor Agreement), to direct the Loan Trustee in taking action for specific performanceunder the Indenture.
Appears in 2 contracts
Samples: Participation Agreement (American Airlines Inc), Participation Agreement (American Airlines Inc)
Certain Covenants of the Company. (a) The Company shall take such steps as are necessary to cause the Company to continue to have sufficient authorized and unissued shares of Common Stock reserved in order to permit the exercise of the unexercised and un-expired unexpired portion of this Warrant, if any.
(b) The Company covenants and agrees that all Warrant Shares issued upon the due exercise of this Warrant will, upon issuance in accordance with the terms hereof, be duly authorized, validly issued, fully paid and non-assessable and free and clear of all taxes, liens, charges, and security interests created by the Company with respect to the issuance thereof.
(c) The Company will pay all documentary stamp taxes, if any, attributable to the initial issuance of Warrant Shares upon the exercise of this Warrant; provided, that the Company shall not be required to pay any tax which may be payable in respect of any transfer involved in the issue of this Warrant or of any certificates for Warrant Shares in a name other than that of the Holder Holders upon the exercise of this Warrant, and the Company shall not be required to issue or deliver such certificates unless or until the person or persons requesting the issuance thereof shall have paid to the Company the amount of such tax, or shall have established to the satisfaction of the Company that such tax has been paid.
(d) This Warrant and, when so issued, the shares of Common Stock which may be issued upon exercise of the Warrants, will have been issued issued, pursuant to an available exemption from registration under the Securities Act.
(e) The Company covenants and agrees that if it fails (i) to register the Warrant Shares as provided in a Registration Rights Agreement between the Holder Holders and the Company, dated of even date herewith, or (ii) to issue the shares of Common Stock upon the proper exercise of the Warrant, then the Holder Holders may immediately commence an action for specific performanceperformance and/or damages.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Galvestons Steakhouse Corp), Securities Purchase Agreement (Galvestons Steakhouse Corp)
Certain Covenants of the Company. The Company covenants with each Underwriter as follows:
(a) The Company shall take such steps as are necessary to cause Immediately following the execution of this Agreement, the Company to continue to have sufficient authorized will prepare a Prospectus Supplement that complies with the 1933 Act and unissued shares of Common Stock reserved in order to permit the exercise 1933 Act Regulations and that sets forth the principal amount of the unexercised Securities and un-expired portion their terms not otherwise specified in the Indenture, the name of this Warranteach Underwriter participating in the offering and the principal amount of the Securities that each severally has agreed to purchase, the name of each Underwriter, if any, acting as representative of the Underwriters in connection with the offering, the price at which the Securities are to be purchased by the Underwriters from the Company, any initial public offering price, any selling concession and reallowance any delayed delivery arrangements and such other information as you and the Company deem appropriate in connection with the offering of the Securities. The Company will promptly transmit copies of the Prospectus Supplement to the Commission for filing pursuant to Rule 424 under the 1933 Act and will furnish to the Underwriters as many copies of the Prospectus as you shall reasonably request.
(b) The Company covenants and agrees If at any time when the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities any event shall occur or condition exist as a result of which it is necessary, in the opinion of counsel for the Underwriters or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that all Warrant Shares issued upon the due exercise Prospectus will not include an untrue statement of this Warrant willa material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, upon issuance or if it shall be necessary, in accordance the opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the terms hereofrequirements of the 1933 Act or the 1933 Act Regulations, be duly authorized, validly issued, fully paid and non-assessable and free and clear of all taxes, liens, charges, and security interests created by the Company will promptly prepare and file with respect the Commission, subject to Section 3(f), such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the issuance thereofRegistration Statement or the Prospectus comply with such requirements.
(c) During the period when the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, the Company will, subject to Section 3(f), file all documents required to be filed with the Commission pursuant to Section 13, Section 14 or Section 15(d) of the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations.
(d) During the period when the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, the Company will inform you of its intention to file any amendment to the Registration Statement or any supplement or revision to the Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise; and the Company will furnish you with copies of any such amendment or supplement at a reasonable time in advance of filing; and will not file any such documents to which the Underwriters or their counsel shall reasonably object.
(e) During the period when the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, the Company will notify you immediately, and confirm the notice in writing, (i) of the effectiveness of any post-effective amendment to the Registration Statement, (ii) of the filing of any supplement to the Prospectus, (iii) of the receipt of any comments from the Commission with respect to the Registration Statement, the Prospectus or the Prospectus Supplement, (iv) of any request by the Commission for any amendment to the Registration Statement or any supplement to the Prospectus or for additional information relating thereto or to any document incorporated by reference in the Prospectus and (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement, of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceeding for any of such purposes. The Company will pay all documentary stamp taxesuse every reasonable effort to prevent the issuance of any such stop order or of any order suspending such qualification and, if anyany such order is issued, attributable to promptly obtain the initial issuance lifting thereof.
(f) The Company has furnished or will, upon request, furnish to you, without charge, one signed copy of Warrant Shares upon the exercise Registration Statement (as originally filed), of this Warrantany Rule 462(b) Registration Statement, and of all amendments thereto, whether filed before or after the Registration Statement became effective (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) (through the end of the period when the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities) and conformed copies of all consents and certificates of experts, as you may reasonably request.
(g) The Company will use its best efforts, in cooperation with the Underwriters, to qualify the Securities for offering and sale under the applicable securities laws of such states and other jurisdictions as you may designate; provided, however, that the Company shall not be required obligated to pay file any tax general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which may be payable it is not so qualified or to subject itself to taxation in respect of doing business in any transfer involved jurisdiction in which it is not otherwise so subject. The Company will file such statements and reports as may be required by the laws of each jurisdiction in which the Securities have been qualified as above provided.
(h) The Company will make generally available to its security holders as soon as practicable, but not later than 45 days (or 90 days, in the issue case of this Warrant or of any certificates for Warrant Shares in a name other than period that is also the Company's fiscal year) after the close of the Holder upon the exercise of this Warrantperiod covered thereby, and the Company shall not be required to issue or deliver such certificates unless or until the person or persons requesting the issuance thereof shall have paid to the Company the amount of such tax, or shall have established to the satisfaction an earnings statement of the Company that such tax has been paid(in form complying with the provisions of Rule 158 of the 1933 Act Regulations), covering a twelve-month period beginning not later than the first day of the Company's fiscal quarter next following the "effective date" (as defined in said Rule 158) of the Registration Statement.
(di) This Warrant and, when so issuedDuring the period beginning on the date hereof and continuing to and including the Closing Time, the shares Company will not, directly or indirectly, offer for sale, sell, pledge or otherwise dispose of Common Stock (or enter into any transaction or device which may is designed to, or could be issued upon exercise expected to, result in the disposition by any person at any time in the future of) any debt securities of or guaranteed by the Company which are substantially similar to the Securities without the prior consent of the Warrants, will have been issued pursuant to an available exemption from registration under the Securities ActUnderwriters.
(e) The Company covenants and agrees that if it fails (i) to register the Warrant Shares as provided in a Registration Rights Agreement between the Holder and the Company, dated of even date herewith, or (ii) to issue the shares of Common Stock upon the proper exercise of the Warrant, then the Holder may immediately commence an action for specific performance.
Appears in 2 contracts
Samples: Underwriting Agreement (Cendant Corp), Underwriting Agreement (PHH Corp)
Certain Covenants of the Company. 4.1 Operation of the Company's Business.
(a) The Company shall take such steps as are necessary to cause During the Period from the date of this Agreement through the Effective Time (the "Pre-Closing Period"), the Company shall: (i) ensure that each of the Acquired Corporations conducts its business and operations (A) in the ordinary course and in accordance with past practices, and (B) in compliance with all applicable Legal Requirements and the requirements of all Material Contracts; (ii) use commercially reasonable efforts to continue ensure that each of the Acquired Corporations preserves intact its current business organization, keeps available the services of its current officers and employees and maintains its relations and goodwill with all suppliers, customers, landlords, creditors, licensors, licensees, employees and other Persons having business relationships with the respective Acquired Corporations; (iii) provide all notices, assurances and support required by any Contract relating to have sufficient authorized and unissued shares of Common Stock reserved any Proprietary Asset in order to permit ensure that no condition under such Contract occurs which could result in, or could increase the exercise likelihood of any transfer or disclosure by any Acquired Corporation of any Proprietary Asset; (iv) keep in full force and effect (with the same scope and limits of coverage) all insurance policies in effect as of the unexercised and un-expired portion date of this WarrantAgreement covering all material assets of the Acquired Corporations and (v) to the extent requested by Parent, if anycause its officers to report regularly to Parent concerning the status of the Acquired Corporations' respective businesses.
(b) The Except as disclosed in the Company covenants Disclosure Schedule, during the Pre- Closing Period, the Company shall not (without the prior written consent of Parent which consent, or refusal to consent, will not be unreasonably delayed), and agrees shall not permit any of the other Acquired Corporations to:
(i) declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of capital stock or repurchase, redeem or otherwise reacquire any shares of capital stock or other securities, except repurchases of unvested shares at cost in connection with the termination of the employment or consulting relationship with any employee or consultant pursuant to stock option or purchase agreements;
(ii) sell, issue, grant or authorize the issuance or grant of (i) any capital stock or other security, (ii) any option, call, warrant or right to acquire any capital stock or other security, or (iii) any instrument convertible into or exchangeable for any capital stock or other security (except that all Warrant Shares issued (A) the Company may issue Company Common Stock upon the due valid exercise of Company Options outstanding as of the date of this Warrant willAgreement or pursuant to the Company's 1997 Employee Stock Purchase Plan as in effect on the date hereof, upon issuance and (B) the Company may grant options under its 1997 Stock Plan to purchase no more than 20,000 shares of Company Common Stock to any single current or prospective employee of the Company, and no more than an aggregate of 600,000 plus the number of shares of Company Common Stock subject to options that are cancelled during such period shares of Company Common Stock pursuant to all such grants);
(iii) amend or waive any of its rights under, or accelerate the vesting under, any provision of any of the Company's stock option plans, any provision of any agreement evidencing any outstanding stock option or any restricted stock purchase agreement, or otherwise modify any of the terms of any outstanding option or any related Contract;
(iv) amend or permit the adoption of any amendment to its certificate of incorporation or bylaws, or effect or become a party to any merger, consolidation, share exchange, business combination, recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction;
(v) form any subsidiary or acquire any equity interest or other interest in any other Entity;
(vi) make any capital expenditure outside the ordinary course of business or make any single capital expenditure in excess of $75,000; provided however, that the maximum amount of all capital expenditures made on behalf of the Acquired Corporations during the Pre-Closing Period shall not exceed $250,000 in the aggregate;
(vii) except in the ordinary course of business and consistent with past practice, enter into or become bound by, or permit any of the assets owned or used by it to become bound by, any Material Contract, or amend or terminate, or waive or exercise any material right or remedy under, any Material Contract;
(viii) acquire, lease or license any right or other asset from any other Person or sell or otherwise dispose of, or lease or license, any right or other asset to any other Person (except in each case for assets acquired, leased, licensed or disposed of by the Company in the ordinary course of business and not having a value, or not requiring payments to be made or received, in excess of $50,000 individually, or $250,000 in the aggregate), or waive or relinquish any material right;
(ix) lend money to any Person, or incur or guarantee any indebtedness (except that the Company may make routine borrowings in the ordinary course of business and in accordance with past practices under the terms hereof, be duly authorized, validly issued, fully paid and non-assessable and free and clear Company's credit facilities outstanding as of all taxes, liens, charges, and security interests created by the Company with respect to the issuance thereof.date hereof (without any amendment or modification thereto));
(cx) The establish, adopt or amend any Company will Employee Plan or collective bargaining agreement, pay all documentary stamp taxesany bonus or make any profit-sharing or similar payment to, if anyor increase the amount of the wages, attributable to the initial issuance salary, commissions, fringe benefits or other compensation or remuneration payable to, any of Warrant Shares upon the exercise of this Warrantits directors or officers; provided, however, that the Company shall not be required to pay any tax which may be payable in respect of any transfer involved in the issue of this Warrant or of any certificates for Warrant Shares in a name other than that of the Holder upon the exercise of this Warrant, make regularly scheduled bonus payments and the Company shall not be required to issue or deliver such certificates unless or until the person or persons requesting the issuance thereof shall have paid to the Company increase the amount of such tax, wages paid to employees in the ordinary course of business and consistent with past practices;
(xi) hire any new employee having an annual salary in excess of $150,000;
(xii) change any of its methods of accounting or shall have established accounting practices in any respect except as required by generally accepted accounting principles;
(xiii) make any material Tax election;
(xiv) commence or settle any material Legal Proceeding;
(xv) enter into any material transaction or take any other material action outside the ordinary course of business and inconsistent with past practices;
(xvi) take or agree to take any action which would result in the satisfaction failure to satisfy the condition provided for in Section 6.1 or 6.2; or
(xvii) agree or commit to take any of the Company that such tax has been paid.
(d) This Warrant and, when so issued, the shares of Common Stock which may be issued upon exercise of the Warrants, will have been issued pursuant to an available exemption from registration under the Securities Act.
(e) The Company covenants and agrees that if it fails actions described in clauses "(i) to register the Warrant Shares as provided in a Registration Rights Agreement between the Holder and the Company, dated )" through "(xvi)" of even date herewith, or (ii) to issue the shares of Common Stock upon the proper exercise of the Warrant, then the Holder may immediately commence an action for specific performancethis Section 4.1(b).
Appears in 2 contracts
Samples: Agreement and Plan of Merger and Reorganization (Applied Micro Circuits Corp), Merger Agreement (Applied Micro Circuits Corp)
Certain Covenants of the Company. (a) The Company shall take such steps A. So long as are necessary to cause the Company to continue to have sufficient authorized any unexpired Warrants remain outstanding and unissued shares of Common Stock reserved if required in order to permit comply with the exercise Securities Act of 1933, as amended (the unexercised and un-expired portion of this Warrant"Act"), if any.
(b) The the Company covenants and agrees that all Warrant Shares issued upon it will file such post-effective amendments to the due exercise of this Warrant will, upon issuance in accordance with registration statement filed pursuant to the terms hereof, be duly authorized, validly issued, fully paid and non-assessable and free and clear of all taxes, liens, charges, and security interests created by the Company Act with respect to the issuance thereof.
Warrants (cFile No. 33-_____) (or such other registration statements or post-effective amendments or supplements) as may be necessary to permit the Company to deliver to each person exercising a Warrant a prospectus meeting the requirements of Section 10(a)(3) of the Act and otherwise complying therewith, and will deliver such a prospectus to each such person. The Company further covenants and agrees that it will pay obtain and keep effective all documentary stamp taxespermits, if anyconsents and approvals of governmental agencies and authorities, attributable and will use its best efforts to the initial issuance of Warrant Shares upon the exercise of this Warrant; provided, that the Company shall not be required to pay any tax take all action which may be payable in respect necessary to qualify the Shares for sale under the securities laws of any transfer involved in the issue of this Warrant or of any certificates for Warrant Shares in a name other than that such of the Holder upon United States, as may be necessary to permit the free exercise of this Warrantthe Warrants, and the Company shall not be required to issue or deliver such certificates unless or until the person or persons requesting the issuance thereof shall have paid to the Company the amount of such taxissuance, or shall have established to the satisfaction sale, transfer and delivery of the Company that such tax has been paid.
(d) This Warrant and, when so issued, the shares of Common Stock which may be Shares issued upon exercise of the Warrants, will have been issued pursuant and to an available exemption from registration under maintain such qualifications during the Securities Actentire period in which the Warrants are exercisable.
(e) B. The Company covenants and agrees that if it fails shall take all such action as may be necessary to ensure that all Shares will at the time of delivery of certificates for such Shares (isubject to payment of the warrant exercise price) to register the Warrant Shares as provided in a Registration Rights Agreement between the Holder be duly and validly authorized and issued and fully paid and nonassessable Shares, free from any preemptive rights and taxes, liens, charges and security interests created by or imposed upon the Company, dated of even date herewith, .
C. The Company covenants and agrees that it will take all action which may be necessary to cause the Shares to be duly listed on the New York Stock Exchange or (ii) to issue any securities exchange on which the other shares of Common Stock upon of the proper Company are listed or on the National Market System of NASDAQ at the dates of exercise of the Warrant, then the Holder may immediately commence an action for specific performanceWarrants.
Appears in 1 contract
Samples: Common Stock Warrant Agreement (Dayton Hudson Corp)
Certain Covenants of the Company. (a) The Company shall take such steps as are necessary to cause the Company to continue to have sufficient authorized and unissued shares of Common Stock reserved in order to permit the exercise of the unexercised and un-expired portion of this Warrant, if any.
(b) The Company covenants and agrees that all Warrant Shares issued upon the due exercise of this Warrant will, upon issuance in accordance with the terms hereof, be duly authorized, validly issued, fully paid and non-assessable and free and clear of all taxes, liens, charges, and security interests created by the Company with respect to the issuance thereof.that
(ca) The Company it will pay reserve and set apart and have at all documentary stamp taxestimes, if anyfree from preemptive rights, attributable to the initial issuance a number of Warrant Shares shares of authorized but unissued Common Stock or other securities or property deliverable upon the exercise of this Warrant; provided, that the Company shall not be required Warrants sufficient to pay enable it at any tax which may be payable in respect of any transfer involved in the issue of this Warrant or of any certificates for Warrant Shares in a name other than that of the Holder upon the exercise of this Warrant, and the Company shall not be required time to issue or deliver such certificates unless or until the person or persons requesting the issuance thereof shall have paid to the Company the amount of such tax, or shall have established to the satisfaction of the Company that such tax has been paid.fulfill all its obligations thereunder;
(db) This before taking any action which would cause an adjustment reducing the Current Warrant and, when so issued, Price below the then par value of the shares of Common Stock issuable upon exercise of the Warrants, it will take any corporate action which may be necessary in order that the Company may validly and legally issue fully paid and nonassessable shares of such Common Stock at such adjusted Current Warrant Price;
(c) if any shares of Common Stock required to be reserved for the purposes of the exercise of this Warrant require registration with or approval of any governmental authority under any federal law (other than the Act) or under any state law before such shares may be issued upon exercise of this Warrant, the WarrantsCompany will, at its expense, as expeditiously as possible, cause such shares to be duly registered or approved, as the case may be;
(d) if and so long as the Common Stock is listed on any national securities exchange (as defined in the Exchange Act), it will, at its expense, obtain and maintain the approval for listing upon official notice of issuance of all shares of Common Stock issuable upon the exercise of the Warrants at the time outstanding and maintain the listing of such shares after their issuance; and the Company will so list on such national securities exchange, will have been issued pursuant to an available exemption from registration register under the Securities Act.Exchange Act (or any similar statute then in effect) and will maintain such listing of any other securities that at any time are issuable upon exercise of the Warrants if, and at the time that, any securities of the same class shall be listed on such national securities exchange by the Company;
(e) The Company covenants it will review its stock ledgers, stock transfer books and agrees that if it fails other corporate records periodically (iand not less often than once in each calendar quarter) in order to register determine whether any Warrantholder is or shall have become, directly or indirectly, the Warrant Shares beneficial owner of more than such percentage of any class of its equity securities (as provided defined in a Registration Rights Agreement between the Holder and Exchange Act) as shall cause such Warrantholder to be required to make any filings or declarations to the Company, dated the Commission or any national securities exchange pursuant to the provisions of even date herewiththe Exchange Act or any comparable federal statute, or (ii) and the Company will give prompt notice to issue the shares of Common Stock such Warrantholder whenever it shall have determined, upon the proper exercise basis of the Warrantinformation disclosed by any such review, then that such Warrantholder is or has become such a holder, which notice shall also specify the Holder may information upon which the Company bases such determination; PROVIDED, HOWEVER, that the Company shall give such notice only once in each fiscal year to any Warrantholder whose percentage of beneficial ownership of the Company's equity securities has not changed since the date of the giving of the immediately commence an action for specific performancepreceding notice; and
(f) this Warrant shall be binding upon CTG and/or any corporation succeeding to the Company by merger, consolidation or acquisition of all or substantially all of the Company's assets.
Appears in 1 contract
Certain Covenants of the Company. (a) The Company shall take such steps as are necessary to cause the Company to continue to have sufficient authorized and unissued shares of Common Stock reserved in order to permit the exercise of the unexercised and un-expired portion of this Warrant, if any.
(b) The Company covenants and agrees that all Warrant Shares issued upon the due exercise of this Warrant will, upon issuance in accordance with the terms hereof, be duly authorized, validly issued, fully paid and non-assessable and free and clear of all taxes, liens, charges, and security interests created by the Company with respect to the issuance thereof.that
(ca) The Company it will pay reserve and set apart and have at all documentary stamp taxestimes, if anyfree from preemptive rights, attributable to the initial issuance a number of Warrant Shares shares of authorized but unissued Common Stock or other securities or property deliverable upon the exercise of this Warrant; provided, that the Company shall not be required Warrants sufficient to pay enable it at any tax which may be payable in respect of any transfer involved in the issue of this Warrant or of any certificates for Warrant Shares in a name other than that of the Holder upon the exercise of this Warrant, and the Company shall not be required time to issue or deliver such certificates unless or until the person or persons requesting the issuance thereof shall have paid to the Company the amount of such tax, or shall have established to the satisfaction of the Company that such tax has been paid.fulfill all its obligations thereunder;
(db) This before taking any action which would cause an adjustment reducing the Warrant and, when so issued, Price below the then par value of the shares of Common Stock issuable upon exercise of the Warrants, it will take any corporate action which may be necessary in order that the Company may validly and legally issue fully paid and nonassessable shares of such Common Stock at such adjusted Warrant Price;
(c) if any shares of Common Stock required to be reserved for the purposes of the exercise of this Warrant require registration with or approval of any governmental authority under any federal law (other than the Act) or under any state law before such shares may be issued upon exercise of this Warrant, the WarrantsCompany will, at its expense, as expeditiously as possible, cause such shares to be duly registered or approved, as the case may be;
(d) if and so long as the Common Stock is listed on any national securities exchange (as defined in the Exchange Act), it will, at its expense, obtain and maintain the approval for listing upon official notice of issuance of all shares of Common Stock issuable upon the exercise of the Warrants at the time outstanding and maintain the listing of such shares after their issuance; and the Company will so list on such national securities exchange, will have been issued pursuant to an available exemption from registration register under the Securities Act.Exchange Act (or any similar statute then in effect) and will maintain such listing of any other securities that at any time are issuable upon exercise of the Warrants if, and at the time that, any securities of the same class shall be listed on such national securities exchange by the Company;
(e) The Company covenants and agrees that if it fails (i) to register except as otherwise prohibited by law, so long as any of the Warrants or Warrant Shares are outstanding, the Company will permit the holder thereof, by its representatives, agents or attorneys, to consult with the management of the Company and its subsidiaries at any time or from time to time, by telephone or in person, on such matters relating to the operation of the Company and its subsidiaries as provided in a Registration Rights Agreement between such representatives shall deem appropriate (including, without limitation, regarding their financial condition, capital expenditures, product development and management compensation); and
(f) this Warrant shall be binding upon any corporation succeeding to the Holder and Company by merger, consolidation or acquisition of all or substantially all of the Company's or Store's assets, dated of even date herewith, or (ii) to issue the shares of Common Stock upon the proper exercise of the Warrant, then the Holder may immediately commence an action for specific performanceas applicable.
Appears in 1 contract
Samples: Warrant Agreement (Video City Inc)
Certain Covenants of the Company. The Company covenants with each Underwriter as follows:
(a) The Company shall take such steps as are necessary to cause If requested by you in connection with the offering of the Offered Securities, the Company to continue to have sufficient authorized will prepare a preliminary prospectus supplement containing such information as you and unissued shares the Company deem appropriate, and, immediately following the execution of Common Stock reserved in order to permit this Agreement, the exercise Company will prepare a Prospectus Supplement that complies with the 1933 Act and the 1933 Act Regulations and that sets forth the principal amount of the unexercised Offered Securities and un-expired portion their terms not otherwise specified in the Indenture, 8 the name of this Warranteach Underwriter participating in the offering and the principal amount of the Offered Securities that each severally has agreed to purchase, the name of each Underwriter, if any, acting as representative of the Underwriters in connection with the offering, the price at which the Offered Securities are to be purchased by the Underwriters from the Company, any initial public offering price, any selling concession and reallowance and any delayed delivery arrangements, and such other information as you and the Company deem appropriate in connection with the offering of the Offered Securities. The Company will promptly transmit copies of the Prospectus Supplement to the Commission for filing pursuant to Rule 424 under the 1933 Act and will furnish to the Underwriters as many copies of any preliminary prospectus supplement and the Prospectus as you shall reasonably request.
(b) The Company covenants and agrees that all Warrant Shares issued upon the due exercise of this Warrant will, upon issuance in accordance will comply with the terms hereof, be duly authorized, validly issued, fully paid 1933 Act and non-assessable and free and clear of all taxes, liens, chargesthe 1933 Act Regulations, and security interests created the 1934 Act and the 1934 Act Regulations, so as to permit the completion of the distribution of the Offered Securities as contemplated in this Agreement and in the Prospectus. If at any time when the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Offered Securities any event shall occur or condition exist as a result of which it is necessary, in the opinion of counsel for the Underwriters or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with respect the Commission, subject to Section 3(d), such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the issuance thereofRegistration Statement or the Prospectus comply with such requirements.
(c) During the period when the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Offered Securities, the Company will, subject to Section 3(d), file promptly all documents required to be filed with the Commission pursuant to Section 13, 14 or 15(d) of the 1934 Act.
(d) During the period when the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Offered Securities, the Company will inform you of its intention to file any amendment to the Registration Statement, any supplement to the Prospectus or any document that would as a result thereof be incorporated by reference in the Prospectus; will furnish you with copies of any such amendment, supplement or other document and afford a reasonable opportunity to comment on such amendment, supplement or other document. 9
(e) During the period when the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Offered Securities, the Company will notify you immediately, and confirm the notice in writing, (i) of the effectiveness of any amendment to the Registration Statement, (ii) of the mailing or the delivery to the Commission for filing of any supplement to the Prospectus or any document that would as a result thereof be incorporated by reference in the Prospectus, (iii) of the receipt of any comments from the Commission with respect to the Registration Statement, the Prospectus or the Prospectus Supplement, (iv) of any request by the Commission for any amendment to the Registration Statement or any supplement to the Prospectus or for additional information relating thereto or to any document incorporated by reference in the Prospectus and (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement, of the suspension of the qualification of the Offered Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceeding for any of such purposes. The Company will pay all documentary stamp taxesuse its best efforts to prevent the issuance of any such stop order or of any order suspending such qualification and, if anyany such order is issued, attributable to obtain the initial issuance lifting thereof at the earliest possible moment.
(f) The Company has furnished or will furnish to you as many conformed copies of Warrant Shares upon the exercise Registration Statement (as originally filed) and of this Warrant; all amendments thereto, whether filed before or after the Registration Statement became effective, copies of all exhibits and documents filed therewith or incorporated by reference therein (through the end of the period when the Prospectus is required by the 1933 Act to be delivered in connection with sales of the Offered Securities) and conformed copies of all consents and certificates of experts, as you may reasonably request, and has furnished or will furnish to you, for each of the Underwriters, one conformed copy of the Registration Statement (as originally filed) and of each amendment thereto (including documents incorporated by reference into the Prospectus).
(g) The Company will take such action as you shall reasonably request to arrange for the qualification of the Offered Securities for offering and sale under the applicable securities laws of such states and other jurisdictions as you may designate and will maintain such qualifications in effect for so long as required for the distribution of the Offered Securities. The Company will file such statements and reports as may be required by the laws of each jurisdiction in which the Offered Securities have been qualified as above provided. Notwithstanding the preceding sentences, that the Company shall not be required obligated to pay qualify as a foreign corporation in any tax jurisdiction in which may be payable it is not so qualified or subject itself to taxation in respect of doing business in any transfer involved jurisdiction in 10 which it is not otherwise so subject or file a general consent to service of process in any jurisdiction.
(h) The Company will make generally available to its security holders as soon as practicable, but not later than 45 days after the close of the period covered thereby (or 90 days, in the issue case of this Warrant or of any certificates for Warrant Shares in a name other than period that of is also the Holder upon the exercise of this WarrantCompany's fiscal year), and the Company shall not be required to issue or deliver such certificates unless or until the person or persons requesting the issuance thereof shall have paid to the Company the amount of such tax, or shall have established to the satisfaction an earnings statement of the Company that (in form complying with the provisions of Rule 158 of the 1933 Act Regulations), covering (i) a period of 12 months beginning after the effective date of the Registration Statement and covering a period of 12 months beginning after the effective date of any post-effective amendment to the Registration Statement but not later than the first day of the Company's fiscal quarter next following such tax has been paidrespective effective dates and (ii) a period of 12 months beginning after the date of this Agreement but not later than the first day of the Company's fiscal quarter next following the date of this Agreement.
(di) This Warrant and, when so issuedIf and to the extent specified in Schedule II, the shares of Common Stock which may Company will use its best efforts to cause the Offered Securities to be issued upon exercise of the Warrants, will have been issued pursuant duly authorized for listing on such exchange specified in Schedule II and to an available exemption from registration be registered under the Securities 1934 Act.
(ej) The For a period of three years after the Closing Date, the Company covenants will furnish to you and, upon request, to each Underwriter, copies of all annual reports, quarterly reports and agrees that if it fails current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by the Commission, and such other documents, reports and information as shall be furnished by the Company to its stockholders or security holders generally.
(ik) to register Between the Warrant Shares as provided in a Registration Rights Agreement between the Holder date hereof and the Companydate of delivery of the Offered Securities, dated of even date herewiththe Company will not, without your prior consent, offer or sell, enter into any agreement to sell, or announce the offering of, any debt securities issued or guaranteed by the Company with maturities longer than one year (ii) other than the Offered Securities). This limitation is not applicable to issue the shares of Common Stock upon the proper exercise of the Warrant, then the Holder such offerings as may immediately commence an action for specific performancebe specified in Schedule II.
Appears in 1 contract
Samples: Underwriting Agreement (Hussmann International Inc)
Certain Covenants of the Company. The Company covenants with each Underwriter as follows:
(a) The Company shall take such steps as are necessary to cause If reasonably requested by you in connection with the offering of the Securities, the Company to continue to have sufficient authorized will prepare preliminary prospectus supplements containing such information as you and unissued shares the Company deem appropriate, and, immediately following the execution of Common Stock reserved in order to permit this Agreement, the exercise Company will prepare a Prospectus Supplement that complies with the 1933 Act and the 1933 Act Regulations and that sets forth the principal amount of the unexercised Securities and un-expired portion their terms not otherwise specified in the Indenture, the name of this Warranteach Underwriter participating in the offering and the principal amount of the Securities that each severally has agreed to purchase, the name of each Underwriter, if any, acting as representative of the Underwriters in connection with the offering, the price at which the Securities are to be purchased by the Underwriters from the Company, any initial public offering price, any selling concession and reallowance and any delayed delivery arrangements, and such other information as you and the Company deem appropriate in connection with the offering of the Securities. The Company will promptly transmit copies of the Prospectus Supplement to the Commission for filing pursuant to Rule 424 under the 1933 Act and will furnish to the Underwriters as many copies of any preliminary prospectus supplements and the Prospectus as you shall reasonably request.
(b) The Company covenants and agrees that all Warrant Shares issued upon will comply to the due exercise best of this Warrant will, upon issuance in accordance its ability with the terms hereof1933 Act and the 1933 Act Regulations, be duly authorized, validly issued, fully paid the 1934 Act and non-assessable and free and clear of all taxes, liens, chargesthe 1934 Act Regulations, and security interests created the 1939 Act and the 1939 Act Regulations so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and the Prospectus. If at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities any event shall occur or condition exist as a result of which it is necessary, in the opinion of counsel for the Underwriters or counsel for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in the opinion of either such counsel, at any such time to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with respect the Commission, subject to Section 3(d), such amendment or supplement as may be necessary to correct such untrue statement or omission or to make the issuance thereofRegistration Statement or the Prospectus comply with such requirements.
(c) During the period when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, the Company will, subject to Section 3(d), file promptly all documents required to be filed with the Commission pursuant to Section 13, 14 or 15(d) of the 1934 Act.
(d) During the period when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, the Company will inform you of its intention to file any amendment to the Registration Statement, any supplement to the Prospectus or any document that would as a result thereof be incorporated by reference in the Prospectus; will furnish you with copies of any such amendment, supplement or other document a reasonable time in advance of filing; and will not file any such amendment, supplement or other document in a form to which you or your counsel shall reasonably object.
(e) During the period when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, the Company will notify you immediately, and confirm the notice in writing, (i) of the effectiveness of any amendment to the Registration Statement, (ii) of the transmission to the Commission for filing of any supplement to the Prospectus or any document that would as a result thereof be incorporated by reference in the Prospectus, (iii) of the receipt of any comments from the Commission with respect to the Registration Statement, the Prospectus or the Prospectus Supplement, (iv) of any request by the Commission for any amendment to the Registration Statement or any supplement to the Prospectus or for additional information relating thereto or to any document incorporated by reference in the Prospectus and (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement, of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the institution or threatening of any proceeding for any of such purposes. The Company will pay all documentary stamp taxesuse every reasonable effort to prevent the issuance of any such stop order or of any order suspending such qualification and, if anyany such order is issued, attributable to obtain the initial issuance lifting thereof at the earliest possible moment.
(f) The Company has furnished or will furnish to you as many signed copies of Warrant Shares upon the exercise Registration Statement (as originally filed) and of this Warrantall amendments thereto, whether filed before or after the Registration Statement became effective, copies of all exhibits and documents filed therewith or incorporated by reference therein (through the end of the period when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities) and signed copies of all consents and certificates of experts, as you may reasonably request, and has furnished or will furnish to you, for each of the Underwriters, one conformed copy of the Registration Statement (as originally filed) and of each amendment thereto (including documents incorporated by reference into the Prospectus but without exhibits).
(g) The Company will use its best efforts, in cooperation with the Underwriters, to qualify the Securities for offering and sale under the applicable securities laws of such states and other jurisdictions as you may designate and to maintain such qualifications in effect for a period of not less than one year from the date hereof; provided, however, that the Company shall not be required obligated to pay file any tax general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which may be payable it is not so qualified or to subject itself to taxation in respect of doing business in any transfer involved jurisdiction in which it is not otherwise so subject. The Company will file such statements and reports as may be required by the issue laws of this Warrant or of any certificates each jurisdiction in which the Securities have been qualified as above provided. The Company will also supply you with such information as is necessary for Warrant Shares in a name other than that the determination of the Holder upon legality of the exercise of this Warrant, and Securities for investment under the Company shall not be required to issue or deliver such certificates unless or until the person or persons requesting the issuance thereof shall have paid to the Company the amount laws of such taxjurisdictions as you may request.
(h) The Company will make generally available to its security holders as soon as practicable, or shall have established to but not later than 45 days after the satisfaction close of the period covered thereby, an earnings statement of the Company that (in form complying with the provisions of Rule 158 of the 1933 Act Regulations), covering (i) a period of 12 months beginning after the effective date of the Registration Statement and covering a period of 12 months beginning after the effective date of any post-effective amendment to the Registration Statement but not later than the first day of the Company's fiscal quarter next following such tax has been paidrespective effective dates and (ii) a period of 12 months beginning after the date of this Agreement but not later than the first day of the Company's fiscal quarter next following the date of this Agreement.
(di) This Warrant The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Prospectus under the caption "Use of Proceeds."
(j) For a period of five years after the Closing Time, the Company will furnish to you and, when so issuedupon request, to each Underwriter, copies of all annual reports, quarterly reports and current reports filed with the shares of Common Stock which Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be issued upon exercise of designated by the WarrantsCommission, will have been issued pursuant and such other documents, reports and information as shall be furnished by the Company to an available exemption from registration under the Securities Actits stockholders or security holders generally.
(ek) The Company covenants has complied and agrees that if it fails (i) to register will comply with all the Warrant Shares provisions of Florida H.B. 1771, codified as provided in a Registration Rights Agreement between the Holder and the Company, dated of even date herewith, or (ii) to issue the shares of Common Stock upon the proper exercise Section 517.075 of the WarrantFlorida Statutes, then the Holder may immediately commence an action for specific performanceand all regulations promulgated thereunder relating to issuers doing business in Cuba.
Appears in 1 contract
Certain Covenants of the Company. (a) The Company shall take such steps A. So long as are necessary to cause the Company to continue to have sufficient authorized any unexpired Warrants remain outstanding and unissued shares of Common Stock reserved if required in order to permit comply with the exercise Securities Act of 1933, as amended (the unexercised and un-expired portion of this Warrant“Act”), if any.
(b) The the Company covenants and agrees that all Warrant Shares issued upon it will file such post-effective amendments to the due exercise of this Warrant will, upon issuance in accordance with registration statement filed pursuant to the terms hereof, be duly authorized, validly issued, fully paid and non-assessable and free and clear of all taxes, liens, charges, and security interests created by the Company Act with respect to the issuance thereof.
Warrants (cFile No. 333- ) (or such other registration statements or post-effective amendments or supplements) as may be necessary to permit the Company to deliver to each person exercising a Warrant a prospectus meeting the requirements of Section 10(a)(3) of the Act and otherwise complying therewith, and will deliver such a prospectus to each such person. The Company further covenants and agrees that it will pay obtain and keep effective all documentary stamp taxespermits, if anyconsents and approvals of governmental agencies and authorities, attributable and will use its best efforts to the initial issuance of Warrant Shares upon the exercise of this Warrant; provided, that the Company shall not be required to pay any tax take all action which may be payable in respect necessary to qualify the Shares for sale under the securities laws of any transfer involved in the issue of this Warrant or of any certificates for Warrant Shares in a name other than that such of the Holder upon United States, as may be necessary to permit the free exercise of this Warrantthe Warrants, and the Company shall not be required to issue or deliver such certificates unless or until the person or persons requesting the issuance thereof shall have paid to the Company the amount of such taxissuance, or shall have established to the satisfaction sale, transfer and delivery of the Company that such tax has been paid.
(d) This Warrant and, when so issued, the shares of Common Stock which may be Shares issued upon exercise of the Warrants, will have been issued pursuant and to an available exemption from registration under maintain such qualifications during the Securities Actentire period in which the Warrants are exercisable.
(e) B. The Company covenants and agrees that if it fails shall take all such action as may be necessary to ensure that all Shares will at the time of delivery of certificates for such Shares (i) subject to register payment of the Warrant Shares as provided in a Registration Rights Agreement between the Holder Exercise Price) be duly and validly authorized and issued and fully paid and nonassessable Shares, free from any preemptive rights and taxes, liens, charges and security interests created by or imposed upon the Company, dated of even date herewith, .
C. The Company covenants and agrees that it will take all action which may be necessary to cause the Shares to be duly listed on the New York Stock Exchange or (ii) to issue any securities exchange on which the other shares of Common Stock upon of the proper Company are listed or on the National Market System of NASDAQ at the dates of exercise of the Warrant, then the Holder may immediately commence an action for specific performanceWarrants.
Appears in 1 contract
Certain Covenants of the Company. (a) The Company shall take hereby agrees to use reasonable best efforts (i) to maintain the listing or quotation of the Common Stock on Nasdaq (or such steps as are necessary to cause other trading market that the Company to continue applies to have sufficient authorized and unissued shares of the Common Stock reserved in order to permit traded on) for so long as any Investor owns unregistered Securities that have not expired by their terms and (ii) as promptly as practicable following the exercise receipt of the unexercised Requisite Stockholder Approval, to secure the listing of the Conversion Shares and un-expired portion the Warrant Shares (subject to official notice of this Warrant, if anyissuance) on such trading market.
(b) The Company covenants shall file a Current Report on Form 8-K and agrees that all Warrant Shares press release disclosing the material terms of the transactions contemplated hereby. The Company shall, prior to such filing, furnish to the Investors for review a copy of such Form 8-K and press release. Such press release will be issued upon prior to market open on the due exercise second business day following the date of this Warrant will, upon issuance in accordance with Agreement and the terms hereof, Form 8-K will be duly authorized, validly issued, fully paid and non-assessable and free and clear of all taxes, liens, charges, and security interests created filed within the time prescribed by the Company with respect to regulations of the issuance thereofCommission.
(c) The Company will pay all documentary stamp taxesFor so long as any Investor holds unregistered Securities that have not expired by their terms, if any, attributable to the initial issuance of Warrant Shares upon the exercise of this Warrant; provided, that (i) the Company shall not be use its reasonable best efforts to timely file (or obtain extensions in respect thereof and file within the applicable grace period) all reports required to pay any tax which may be payable filed by the Company after the date hereof pursuant to the Exchange Act and (ii) if the Company is not required to file reports pursuant to the Exchange Act, it will prepare and furnish to the Investors and make publicly available in respect of any transfer involved in accordance with Rule 144(c) such information as is required for the issue of this Warrant or of any certificates for Investors to sell the Conversion Shares and the Warrant Shares in a name other than that of the Holder upon the exercise of this Warrant, and the Company shall not be required to issue or deliver such certificates unless or until the person or persons requesting the issuance thereof shall have paid to the Company the amount of such tax, or shall have established to the satisfaction of the Company that such tax has been paidunder Rule 144.
(d) This Warrant andNo claim will be made or enforced by the Company or, when so issued, with the shares of Common Stock which may be issued upon exercise consent of the WarrantsCompany, will have been issued any other person, that any Investor is an “Acquiring Person” or a “20% Stockholder” under any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or similar anti-takeover plan or arrangement (excluding the 19.99% Restriction) in effect or hereafter adopted by the Company or that any Investor could be deemed to trigger the provisions of any such plan or arrangement by virtue of receiving Securities pursuant to an available exemption from registration under the Securities Actthis Agreement.
(e) The Company covenants shall continue to reserve and agrees that if it fails (i) to register keep available at all times through the Warrant date on which the Preferred Shares as provided have been converted in full, free of preemptive rights, a Registration Rights Agreement between the Holder and the Company, dated sufficient number of even date herewith, or (ii) to issue the shares of Common Stock upon for the proper purpose of enabling the Company to issue the Conversion Shares pursuant to any conversion of any Preferred Shares in accordance with the Certificate of Designations.
(f) The Company shall continue to reserve and keep available at all times through the earlier of the date on which the Warrants have been exercised in full and the expiration date of the Warrants, free of preemptive rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to issue the Warrant Shares pursuant to any exercise of the Warrant, then Warrants in accordance with the Holder may immediately commence an action for specific performanceterms of the Warrants.
Appears in 1 contract
Certain Covenants of the Company. (a) The Company shall take such steps A. So long as are necessary to cause the Company to continue to have sufficient authorized any unexpired Warrants remain outstanding and unissued shares of Common Stock reserved if required in order to permit comply with the exercise Securities Act of 1933, as amended (the unexercised and un-expired portion of this Warrant"Act"), if any.
(b) The the Company covenants and agrees that all Warrant Shares issued upon it will file such post-effective amendments to the due exercise of this Warrant will, upon issuance in accordance with registration statement filed pursuant to the terms hereof, be duly authorized, validly issued, fully paid and non-assessable and free and clear of all taxes, liens, charges, and security interests created by the Company Act with respect to the issuance thereof.
Warrants (cFile No. 333__) (or such other registration statements or post-effective amendments or supplements) as may be necessary to permit the Company to deliver to each person exercising a Warrant a prospectus meeting the requirements of Section 10(a)(3) of the Act and otherwise complying therewith, and will deliver such a prospectus to each such person. The Company further covenants and agrees that it will pay obtain and keep effective all documentary stamp taxespermits, if anyconsents and approvals of governmental agencies and authorities, attributable and will use its best efforts to the initial issuance of Warrant Shares upon the exercise of this Warrant; provided, that the Company shall not be required to pay any tax take all action which may be payable in respect necessary to qualify the Shares for sale under the securities laws of any transfer involved in the issue of this Warrant or of any certificates for Warrant Shares in a name other than that such of the Holder upon United States, as may be necessary to permit the free exercise of this Warrantthe Warrants, and the Company shall not be required to issue or deliver such certificates unless or until the person or persons requesting the issuance thereof shall have paid to the Company the amount of such taxissuance, or shall have established to the satisfaction sale, transfer and delivery of the Company that such tax has been paid.
(d) This Warrant and, when so issued, the shares of Common Stock which may be Shares issued upon exercise of the Warrants, will have been issued pursuant and to an available exemption from registration under maintain such qualifications during the Securities Actentire period in which the Warrants are exercisable.
(e) B. The Company covenants and agrees that if it fails shall take all such action as may be necessary to ensure that all Shares will at the time of delivery of certificates for such Shares (isubject to payment of the warrant exercise price) to register the Warrant Shares as provided in a Registration Rights Agreement between the Holder be duly and validly authorized and issued and fully paid and nonassessable Shares, free from any preemptive rights and taxes, liens, charges and security interests created by or imposed upon the Company, dated of even date herewith, .
C. The Company covenants and agrees that it will take all action which may be necessary to cause the Shares to be duly listed on the New York Stock Exchange or (ii) to issue the shares of Common Stock upon the proper exercise of the Warrant, then the Holder may immediately commence an action for specific performance.any
Appears in 1 contract
Samples: Common Stock Warrant Agreement (Indymac Capital Trust Iv)
Certain Covenants of the Company. (a) The Company shall take such steps A. So long as are necessary to cause the Company to continue to have sufficient authorized any unexpired Warrants remain outstanding and unissued shares of Common Stock reserved if required in order to permit comply with the exercise Securities Act of 1933, as amended (the unexercised and un-expired portion of this Warrant"Act"), if any.
(b) The the Company covenants and agrees that all Warrant Shares issued upon it will file such post-effective amendments to the due exercise of this Warrant will, upon issuance in accordance with registration statement filed pursuant to the terms hereof, be duly authorized, validly issued, fully paid and non-assessable and free and clear of all taxes, liens, charges, and security interests created by the Company Act with respect to the issuance thereof.
Warrants (cFile No. 333-53751) (or such other registration statements or post-effective amendments or supplements) as may be necessary to permit the Company to deliver to each person exercising a Warrant a prospectus meeting the requirements of Section 10(a)(3) of the Act and otherwise complying therewith, and will deliver such a prospectus to each such person. The Company further covenants and agrees that it will pay obtain and keep effective all documentary stamp taxespermits, if anyconsents and approvals of governmental agencies and authorities, attributable and will use its best efforts to the initial issuance of Warrant Shares upon the exercise of this Warrant; provided, that the Company shall not be required to pay any tax take all action which may be payable in respect necessary to qualify the Shares for sale under the securities laws of any transfer involved in the issue of this Warrant or of any certificates for Warrant Shares in a name other than that such of the Holder upon United States, as may be necessary to permit the free exercise of this Warrantthe Warrants, and the Company shall not be required to issue or deliver such certificates unless or until the person or persons requesting the issuance thereof shall have paid to the Company the amount of such taxissuance, or shall have established to the satisfaction sale, transfer and delivery of the Company that such tax has been paid.
(d) This Warrant and, when so issued, the shares of Common Stock which may be Shares issued upon exercise of the Warrants, will have been issued pursuant and to an available exemption from registration under maintain such qualifications during the Securities Actentire period in which the Warrants are exercisable.
(e) B. The Company covenants and agrees that if it fails shall take all such action as may be necessary to ensure that all Shares will at the time of delivery of certificates for such Shares (i) subject to register payment of the Warrant Shares as provided in a Registration Rights Agreement between the Holder Exercise Price) be duly and validly authorized and issued and fully paid and nonassessable Shares, free from any preemptive rights and taxes, liens, charges and security interests created by or imposed upon the Company, dated of even date herewith, .
C. The Company covenants and agrees that it will take all action which may be necessary to cause the Shares to be duly listed on the New York Stock Exchange or (ii) to issue another securities exchange or the shares interdealer quotation system on which the other Shares of Common Stock upon of the proper Company are listed at the dates of exercise of the Warrant, then the Holder may immediately commence an action for specific performanceWarrants.
Appears in 1 contract
Samples: Common Stock Warrant Agreement (Carramerica Realty Corp)
Certain Covenants of the Company. (a) The Company shall take such steps as are necessary to cause the Company to continue to have sufficient authorized and unissued shares of Common Stock reserved in order to permit the exercise of the unexercised and un-expired unexpired portion of this Warrant, if any.
(b) The Company covenants and agrees that all Warrant Shares issued upon the due exercise of this Warrant will, upon issuance in accordance with the terms hereof, be duly authorized, validly issued, fully paid and non-assessable and free and clear of all taxes, liens, charges, and security interests created by the Company with respect to the issuance thereof.
(c) The Company will pay all documentary stamp taxes, if any, attributable to the initial issuance of Warrant Shares upon the exercise of this Warrant; provided, that the Company shall not be required to pay any tax which may be payable in respect of any transfer involved in the issue of this Warrant or of any certificates for Warrant Shares in a name other than that of the Holder upon the exercise of this Warrant, and the Company shall not be required to issue or deliver such certificates unless or until the person or persons requesting the issuance thereof shall have paid to the Company the amount of such tax, or shall have established to the satisfaction of the Company that such tax has been paid.
(d) This Warrant and, when so issued, the shares of Common Stock which may be issued upon exercise of the Warrants, will have been issued pursuant to an available exemption from registration under the Securities Act.
(e) The Company covenants and agrees that if it fails (i) to register file a registration statement covering the Warrant Shares as provided in a Registration Rights Agreement between the Holder and the Company, dated of even date herewith, or (ii) to issue the shares of Common Stock upon the proper exercise of the Warrant, then the Holder may may, in addition to any remedies at law, immediately commence an action for specific performance.
Appears in 1 contract
Samples: Stock Purchase Agreement (Commodore Applied Technologies Inc)
Certain Covenants of the Company. (a) The Company shall take covenants that it will at all times reserve and keep available out of its authorized Common Stock, solely for the purpose of issue upon exercise of the Warrants, such steps as are necessary to cause the Company to continue to have sufficient authorized and unissued number of shares of Common Stock reserved in order to permit as shall then be issuable upon the exercise of all outstanding Warrants. The Company covenants that all shares of Common Stock which shall be issuable upon exercise of the unexercised Warrants and un-expired portion payment of this Warrantthe Purchase Price shall, if anyat the tune of delivery, be duly and validly issued, fully paid, nonassessable and free from all taxes, liens and charges with respect to the issued thereof (other than those which the Company shall promptly pay or discharge).
(b) The Company covenants and agrees that all Warrant Shares issued upon the due exercise of this Warrant will, upon issuance in accordance with the terms hereof, be duly authorized, validly issued, fully paid and non-assessable and free and clear of all taxes, liens, charges, and security interests created by the Company will use reasonable efforts to obtain appropriate approvals or registrations under state "blue sky" securities laws with respect to the issuance thereofexercise of the Warrants: provided, however, that the Company shall not be obligated to file any general consent to service of process or qualify as a foreign corporation in any jurisdiction. With respect to any such securities laws, however, Warrants may not be exercised by, or shares of Common Stock issued to, any Registered Holder in any State in which such exercise would be unlawful.
(c) The Company will shall pay all documentary documentary, stamp taxes, if any, attributable or similar taxes and other governmental charges that may be imposed with respect to the initial issuance of Warrant Shares Warrants, or the issuance, or delivery of any shares upon the exercise of this Warrant; the Warrants, provided, however, that if the Company shall not shares of Common Stock are to be required to pay any tax which may be payable in respect of any transfer involved in the issue of this Warrant or of any certificates for Warrant Shares delivered in a name other than that the name of the Registered Holder upon of the exercise of this WarrantWarrant being exercise, and the Company then no such delivery shall not be required to issue or deliver such certificates made unless or until the person or persons requesting the issuance thereof shall have same has paid to the Company the amount of such taxtransfer taxes or charges incident thereto, or shall have established to the satisfaction of the Company that such tax has been paidif any.
(d) This Warrant andThe Company will take such action as any Registered Holder may reasonable request, when so issued, all to the shares of Common Stock which may be issued upon exercise extent required from time to time to facilitate any sale or disposition by any such holder of the Warrants, will have been issued pursuant to an available exemption from Warrants or Warrant Shares without registration under the Act and/or any applicable state securities laws within the limitation of the exemptions provided by any rule or regulation thereunder, including, without limitation, Rule 144 under the Act (but excluding Rule 144A thereunder). In addition, the Company will cooperate with each Registered Holder in supplying such information as may be necessary to complete and file any information reporting forms presently or thereafter required by any regulatory authority; including, without limitation, the Securities Actand Exchange Commission, as a condition to exemption from the Act and/or any applicable state securities law for the sale or other disposition of any Warrant or any Warrant Shares.
(e) The Company covenants shall indemnify, save and agrees that if it fails (i) to register hold harmless the Warrant Shares as provided in a Registration Rights Agreement between the Registered Holder and the Companyholder of any Warrant Shares from and against any and all liability, dated of even date herewithloss, or (ii) to issue the shares of Common Stock upon the proper exercise costs, damage, reasonable attorneys' and accountants' fees and expenses, court costs and all other out-of-pocket expenses incurred by such holder in connection with preserving, exercising and/or enforcing any of the Warrant, then the Holder may immediately commence an action for specific performanceterms hereof.
Appears in 1 contract
Samples: Warrant Agreement (Amerigon Inc)
Certain Covenants of the Company. (a) The Company shall take such steps A. So long as are necessary to cause the Company to continue to have sufficient authorized any unexpired Warrants remain outstanding and unissued shares of Common Stock reserved if required in order to permit comply with the exercise Securities Act of 1933, as amended (the unexercised and un-expired portion of this Warrant"Act"), if any.
(b) The the Company covenants and agrees that all Warrant Shares issued upon it will file such post-effective amendments to the due exercise of this Warrant will, upon issuance in accordance with registration statement filed pursuant to the terms hereof, be duly authorized, validly issued, fully paid and non-assessable and free and clear of all taxes, liens, charges, and security interests created by the Company Act with respect to the issuance thereof.
Warrants (cor such other registration statements or post-effective amendments or supplements) as may be necessary to permit the Company to deliver to each person exercising a Warrant a prospectus meeting the requirements of Section 10(a)(3) of the Act and otherwise complying therewith, and will deliver such a prospectus to each such person. The Company further covenants and agrees that it will pay obtain and keep effective all documentary stamp taxespermits, if anyconsents and approvals of governmental agencies and authorities, attributable and will use its best efforts to the initial issuance of Warrant Shares upon the exercise of this Warrant; provided, that the Company shall not be required to pay any tax take all action which may be payable in respect necessary to qualify the Shares for sale under the securities laws of any transfer involved in the issue of this Warrant or of any certificates for Warrant Shares in a name other than that such of the Holder upon United States, as may be necessary to permit the free exercise of this Warrantthe Warrants, and the Company shall not be required to issue or deliver such certificates unless or until the person or persons requesting the issuance thereof shall have paid to the Company the amount of such taxissuance, or shall have established to the satisfaction sale, transfer and delivery of the Company that such tax has been paid.
(d) This Warrant and, when so issued, the shares of Common Stock which may be Shares issued upon exercise of the Warrants, will have been issued pursuant and to an available exemption from registration under maintain such qualifications during the Securities Actentire period in which the Warrants are exercisable.
(e) B. The Company covenants and agrees that if it fails shall lake all such action as may be necessary to ensure that all Shares will at the time of delivery of certificates for such Shares (i) subject to register payment of the Warrant Shares as provided in a Registration Rights Agreement between the Holder Exercise Price) be duly and validly authorized and issued and fully paid and nonassessable Shares, free from any preemptive rights and taxes, liens, charges and security interests created by or imposed upon the Company, dated of even date herewith, .
C. The Company covenants and agrees that it will take all action which may be necessary to cause the Shares to be duly listed on the New York Stock Exchange or (ii) to issue another securities exchange or the interdealer quotation system on which the other [shares of Common Stock upon Common/Preferred Stock] [Depositary Shares] of the proper Company are listed at the dates of exercise of the Warrant, then the Holder may immediately commence an action for specific performanceWarrants.
Appears in 1 contract
Samples: Warrant Agreement (Allied Waste North America Inc/De/)
Certain Covenants of the Company. (a) The Company shall take such steps A. So long as are necessary to cause the Company to continue to have sufficient authorized any unexpired Warrants remain outstanding and unissued shares of Common Stock reserved if required in order to permit comply with the exercise Securities Act of 1933, as amended (the unexercised and un-expired portion of this Warrant"Act"), if any.
(b) The the Company covenants and agrees that all Warrant Shares issued upon it will file such post-effective amendments to the due exercise of this Warrant will, upon issuance in accordance with registration statement filed pursuant to the terms hereof, be duly authorized, validly issued, fully paid and non-assessable and free and clear of all taxes, liens, charges, and security interests created by the Company Act with respect to the issuance thereof.
Warrants (cFile No. 333- ) (or such other registration statements or post-effective amendments or supplements) as may be necessary to permit the Company to deliver to each person exercising a Warrant a prospectus meeting the requirements of Section 10(a)(3) of the Act and otherwise complying therewith, and will deliver such a prospectus to each such person. The Company further covenants and agrees that it will pay obtain and keep effective all documentary stamp taxespermits, if anyconsents and approvals of governmental agencies and authorities, attributable and will use its best efforts to the initial issuance of Warrant Shares upon the exercise of this Warrant; provided, that the Company shall not be required to pay any tax take all action which may be payable in respect necessary to qualify the Shares for sale under the securities laws of any transfer involved in the issue of this Warrant or of any certificates for Warrant Shares in a name other than that such of the Holder upon United States, as may be necessary to permit the free exercise of this Warrantthe Warrants, and the Company shall not be required to issue or deliver such certificates unless or until the person or persons requesting the issuance thereof shall have paid to the Company the amount of such taxissuance, or shall have established to the satisfaction sale, transfer and delivery of the Company that such tax has been paid.
(d) This Warrant and, when so issued, the shares of Common Stock which may be Shares issued upon exercise of the Warrants, will have been issued pursuant and to an available exemption from registration under maintain such qualifications during the Securities Actentire period in which the Warrants are exercisable.
(e) B. The Company covenants and agrees that if it fails shall take all such action as may be necessary to ensure that all Shares will at the time of delivery of certificates for such Shares (i) subject to register payment of the Warrant Shares as provided in a Registration Rights Agreement between the Holder Exercise Price) be duly and validly authorized and issued and fully paid and nonassessable Shares, free from any preemptive rights and taxes, liens, charges and security interests created by or imposed upon the Company, dated of even date herewith, .
C. The Company covenants and agrees that it will take all action which may be necessary to cause the Shares to be duly listed on the New York Stock Exchange or (ii) to issue any securities exchange on which the other shares of Common Stock upon of the proper Company are listed or on the National Market System of NASDAQ at the dates of exercise of the Warrant, then the Holder may immediately commence an action for specific performanceWarrants.
Appears in 1 contract
Samples: Warrant Agreement (Uhc Capital I)
Certain Covenants of the Company. (a) The Company shall take such steps A. So long as are necessary to cause the Company to continue to have sufficient authorized any unexpired Warrants remain outstanding and unissued shares of Common Stock reserved if required in order to permit comply with the exercise Securities Act of 1933, as amended (the unexercised and un-expired portion of this Warrant"Act"), if any.
(b) The the Company covenants and agrees that all Warrant Shares issued upon it will file such post-effective amendments to the due exercise of this Warrant will, upon issuance in accordance with registration statement filed pursuant to the terms hereof, be duly authorized, validly issued, fully paid and non-assessable and free and clear of all taxes, liens, charges, and security interests created by the Company Act with respect to the issuance thereof.
Warrants (cFile No. 333-_____) (or such other registration statements or post-effective amendments or supplements) as may be necessary to permit the Company to deliver to each person exercising a Warrant a prospectus meeting the requirements of Section 10(a)(3) of the Act and otherwise complying therewith, and will deliver such a prospectus to each such person. The Company further covenants and agrees that it will pay obtain and keep effective all documentary stamp taxespermits, if anyconsents and approvals of governmental agencies and authorities, attributable and will use its best efforts to the initial issuance of Warrant Shares upon the exercise of this Warrant; provided, that the Company shall not be required to pay any tax take all action which may be payable in respect necessary to qualify the [Shares][Warrant Securities] for sale under the securities laws of any transfer involved in the issue of this Warrant or of any certificates for Warrant Shares in a name other than that such of the Holder upon United States, as may be necessary to permit the free exercise of this Warrantthe Warrants, and the Company shall not be required to issue or deliver such certificates unless or until the person or persons requesting the issuance thereof shall have paid to the Company the amount of such taxissuance, or shall have established to the satisfaction sale, transfer and delivery of the Company that such tax has been paid.
(d) This Warrant and, when so issued, the shares of Common Stock which may be [Shares][Warrant Securities] issued upon exercise of the Warrants, will have been issued pursuant and to an available exemption from registration under maintain such qualifications during the Securities Actentire period in which the Warrants are exercisable.
(e) B. The Company covenants and agrees that if it fails shall take all such action as may be necessary to ensure that all [Shares][Warrant Securities] will at the time of delivery of certificates for such [Shares][Warrant Securities] (isubject to payment of the warrant exercise price) to register the Warrant Shares as provided in a Registration Rights Agreement between the Holder be duly and validly authorized and issued [and fully paid and nonassessable Shares, free from any preemptive rights and taxes, liens, charges and security interests created by or imposed upon the Company, dated of even date herewith, ].
C. [The Company covenants and agrees that it will take all action which may be necessary to cause the [Shares][Warrant Securities] to be duly listed on the New York Stock Exchange or (ii) to issue any securities exchange on which the other shares of Common Stock upon of the proper Company are listed or on the National Market System of NASDAQ at the dates of exercise of the Warrant, then the Holder may immediately commence an action for specific performanceWarrants.]
Appears in 1 contract
Samples: Warrant Agreement (Valspar Corp)
Certain Covenants of the Company. The Company hereby agrees that:
(a) The Company will prepare the Final Memorandum in a form approved by the Initial Purchasers (which approval shall take not be unreasonably withheld) and will make no amendment or supplement to the Final Memorandum to which the Initial Purchasers reasonably object promptly after having been furnished such steps as are necessary to cause the Company to continue to have sufficient authorized and unissued shares of Common Stock reserved in order to permit the exercise of the unexercised and un-expired portion of this Warrant, if any.proposed amendment or supplement;
(b) The Company covenants will take such action as the Initial Purchasers may reasonably request to qualify the Notes and agrees the Shares for offering and sale under the securities laws of such jurisdictions as the Initial Purchasers may reasonably request in writing and will comply with such laws so as to permit the continuance of sales and dealing therein in such jurisdictions for as long as may be reasonably necessary to complete the distribution of the Notes; provided, that all Warrant Shares issued upon the due exercise of this Warrant will, upon issuance in accordance with the terms hereof, be duly authorized, validly issued, fully paid and non-assessable and free and clear of all taxes, liens, charges, and security interests created by connection therewith the Company with respect shall not be required to the issuance thereof.qualify as a foreign corporation, to file a general consent to service of process or subject itself to any tax in any such jurisdiction where it is not now so qualified or subject;
(c) The Company will pay all documentary stamp taxesfurnish the Initial Purchasers with as many copies of the Final Memorandum, if anyany documents incorporated by reference therein (but not the exhibits thereto, attributable except for any such exhibit that has been specifically incorporated by reference in the Final Memorandum) and any amendment or supplement thereto as the Initial Purchasers may from time to time reasonably request, and if, at any time prior to the initial completion of the resale of the Notes by the Initial Purchasers, any event shall have occurred as a result of which the Final Memorandum as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Final Memorandum is delivered, not misleading, or if for any other reason it shall be necessary or desirable during such same period to amend or supplement the Final Memorandum, the Company will notify the Initial Purchasers and upon the request of the Initial Purchasers will prepare and furnish without charge to the Initial Purchasers and to any dealer in securities as many copies as the Initial Purchasers may from time to time reasonably request of an amended Final Memorandum or a supplement to the Final Memorandum which will correct such statement or omission or effect such compliance;
(d) During the period beginning from the date hereof and continuing until the date 90 days after the date of the Final Memorandum, the Company will not, without the prior written consent of UBS, issue, offer, sell, contract to sell, hypothecate, pledge, grant or sell any option, right or warrant to purchase, or otherwise dispose of, or contract to dispose of, any Shares, any securities substantially similar to the Notes or the Common Stock, including the Company's Class A common stock, par value U.S.$0.01 per share, any securities that are convertible into or exchangeable for shares of Common Stock and debt securities or any securities that are convertible into or exchangeable for the Notes or such other debt securities (other than (i) the issuance of Warrant the Notes; (ii) the issuance of Shares upon conversion of the Notes; (iii) the issuance of shares of Common Stock upon conversion or exercise of convertible or exercisable or exchangeable securities outstanding as of the date of this WarrantAgreement or (iv) the issuance of shares of Common Stock or options pursuant to employee stock option or employee stock purchase plans existing on, or upon exercise of warrants outstanding as of, the date of this Agreement), or enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of the Common Stock or Notes irrespective of whether any transaction mentioned above is to be settled by delivery of the Common Stock, the Notes or other securities, in cash or otherwise;
(e) At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act and so long as any of the Notes (or Shares issued upon conversion thereof) are "restricted securities" within the meaning of Rule 144(a)(3) under the Securities Act, for the benefit of holders from time to time of the Notes, the Company will furnish at its expense, upon request, to holders and beneficial owners of Notes and prospective purchasers of Notes information satisfying the requirements of subsection (d)(4)(i) of Rule 144A;
(f) The Company will use its commercially reasonable efforts to cause the Notes to be eligible for trading in PORTAL;
(g) For a period commencing on, and ending on the third anniversary of, the time of purchase, the Company will furnish to the Initial Purchasers (i) copies of all reports or other communications (financial or other), in each case to the extent they are publicly available, furnished to stockholders of the Company during such period, and will deliver to the Initial Purchasers as soon as they are available, and to the extent they are publicly available, copies of any reports and financial statements furnished to or filed by the Company during such period with the Commission or any securities exchange on which the Notes or any class of securities of the Company is listed; and (ii) such additional information concerning the business and financial condition of the Company as the Initial Purchasers may from time to time reasonably request, to the extent such information is publicly available (such financial information to be on a consolidated basis to the extent the accounts of the Company and the Subsidiaries are consolidated in reports furnished to its stockholders generally or to the Commission); provided, that the filing by the company in the Commission's EDGAR system of any item described in this subsection (g) shall be xxxxxd to satisfy the Company's obligation to furnish or deliver such item to the Initial Purchasers pursuant to this subsection (g).
(h) The Company shall will use the net proceeds received by it from the sale of the Notes pursuant to this Agreement in the manner specified in the Final Memorandum under the caption "Use of proceeds";
(i) The Company will reserve and keep available at all times free of preemptive rights, Shares for the purpose of enabling the Company to satisfy any obligations to issue Shares upon conversion of the Notes;
(j) The Company will use its reasonable best efforts to list, as promptly as practicable but in no event later than the time that the registration statement is declared effective in accordance with the Registration Rights Agreement, and subject to notice of issuance, the Shares on the New York Stock Exchange;
(k) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be required paid all expenses incident to the performance of its obligations under this Agreement, including, without limitation, (i) the fees, disbursements and expenses of the Company's counsel and the Company's accountants in connection with the issuance and sale of the Notes and all other fees and expenses in connection with the preparation of each Memorandum and all amendments and supplements thereto, including all printing costs associated therewith, and the furnishing of copies thereof to the Initial Purchasers and to dealers (including costs of mailing and shipment), (ii) all costs related to the preparation, issuance, execution, authentication and delivery of the Notes and the Shares, (iii) all costs related to the transfer and delivery of the Notes to the Initial Purchasers, including any transfer or other taxes payable thereon, (iv) all expenses in connection with the qualification of the Notes and the Shares for offering and sale under state laws and the cost of printing and furnishing of copies of any blue sky or legal investment memorandum to the Initial Purchasers and to dealers (including filing fees and the reasonable and documented fees and disbursements of counsel for the Initial Purchasers in connection with such qualification and in connection with such blue sky or legal investment memorandum), (v) the costs and charges of the Trustee and any transfer agent, registrar or depositary, (vi) the fees and expenses, if any, incurred in connection with the admission of the Notes for trading in PORTAL or any appropriate market system, (vii) the costs and expenses of the Company relating to investor presentations on any "road show" undertaken in connection with the marketing of the offering of the Notes, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company, travel and lodging expenses of the representatives and officers of the Company and any such consultants, and the cost of any aircraft chartered in connection with the road show, and (viii) all other cost and expenses incident to the performance of the Company's obligations hereunder for which provision is not otherwise made in this Section 5(k); it being understood however, that, except as provided in this Section 5(k) or in Section 6 and Section 9, the Initial Purchasers will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any tax which of the Notes or the Shares by them and any advertising expenses connected with any offers they may be payable make;
(l) Neither the Company nor any Affiliate will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any transfer involved security (as defined in the issue Securities Act) which could be integrated with the sale of this Warrant or of any certificates for Warrant Shares the Notes in a name other than that of manner which would require the Holder upon the exercise of this Warrant, and the Company shall not be required to issue or deliver such certificates unless or until the person or persons requesting the issuance thereof shall have paid to the Company the amount of such tax, or shall have established to the satisfaction of the Company that such tax has been paid.
(d) This Warrant and, when so issued, the shares of Common Stock which may be issued upon exercise of the Warrants, will have been issued pursuant to an available exemption from registration under the Securities Act.Act of the offer and sale of the Notes pursuant to this Agreement;
(em) The Company covenants and agrees that if it fails will not solicit any offer to buy or offer or sell the Notes or the Shares by means of any form of general solicitation or general advertising (ias those terms are used in Regulation D under the Securities Act) to register or in any manner involving a public offering within the Warrant Shares as provided in a Registration Rights Agreement between the Holder and the Company, dated meaning of even date herewith, or (iiSection 4(2) to issue the shares of Common Stock upon the proper exercise of the WarrantSecurities Act;
(n) During the period of two years immediately after the time of purchase or the additional time of purchase, then if later, the Holder may immediately commence Company will not, and will not permit any of its Affiliates, to resell any of the Notes or the Shares which constitute "restricted securities" under Rule 144 under the Securities Act that have been reacquired by any of them except pursuant to an effective registration statement under the Securities Act; and
(o) Neither the Company nor any Affiliate will take any action for specific performanceprohibited by Regulation M under the Exchange Act in connection with the distribution of the Notes contemplated hereby.
Appears in 1 contract
Certain Covenants of the Company. (a) The Company will advise the Initial Purchaser promptly of any proposal to amend or supplement the Offering Documents and will not effect such amendment or supplementation without the Initial Purchaser's consent, which consent shall take such steps not be unreasonably withheld. If, at any time prior to the completion of the initial resale of the Notes by the Initial Purchaser, any event occurs as are a result of which the Offering Documents as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary to cause the Company to continue to have sufficient authorized and unissued shares of Common Stock reserved in order to permit make the exercise statements therein, in the light of the unexercised circumstances under which they were made, not misleading, the Company promptly will notify the Initial Purchaser of such event and un-expired portion promptly will prepare at its own expense, an amendment or supplement which will correct such statement or omission. Neither the Initial Purchaser's consent to, nor the Initial Purchaser's delivery to offerees or investors of, any such amendment or supplement shall constitute a waiver of this Warrant, if anyany of the conditions set forth in Section 7.
(b) The Company covenants will furnish to the Initial Purchaser copies of the Offering Documents and agrees that all Warrant Shares issued upon amendments and supplements to such documents, in each case as soon as available and in such quantities as the due exercise Initial Purchaser reasonably requests, and the Company will furnish to the Initial Purchaser on the date thereof three copies of this Warrant willthe independent accountants' reports included in the Offering Memorandum manually signed by such independent accountants. At any time when the Company is not subject to Section 13 or 15(d) of the Exchange Act, for so long as any Notes are outstanding, the Company will promptly furnish or cause to be furnished to the Initial Purchaser and, upon issuance request of holders and prospective purchasers of the Notes, to such holders and purchasers, a reasonable number of copies of the information required to be delivered to holders and prospective purchasers of the Notes pursuant to Rule 144(d)(4) under the Securities Act (or any successor provision thereto) in accordance order to permit compliance with Rule 144A in connection with resales by such holders of the terms hereof, be duly authorized, validly issued, fully paid Notes. The Company will pay the expenses of printing and non-assessable and free and clear of all taxes, liens, charges, and security interests created by the Company with respect distributing to the issuance thereofInitial Purchaser all such documents.
(c) The Company will pay all documentary stamp taxesarrange, if anyin cooperation with the Initial Purchaser and its counsel, attributable for the qualification of the Notes for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as the Initial Purchaser designates and will continue such qualifications in effect so long as required to complete the initial issuance resale of Warrant Shares upon the exercise of this WarrantNotes by the Initial Purchaser; provided, however, that the Company shall will not be required to pay qualify as a foreign corporation or to file a general consent to service of process in any tax which may be payable in respect of any transfer involved in the issue of this Warrant or of any certificates for Warrant Shares in a name other than that of the Holder upon the exercise of this Warrant, and the Company shall not be required to issue or deliver such certificates unless or until the person or persons requesting the issuance thereof shall have paid to the Company the amount of such tax, or shall have established to the satisfaction of the Company that such tax has been paidjurisdiction.
(d) This Warrant andDuring the period of three years after the Closing Date or, when so issuedif earlier, until such time as the shares of Common Stock which may be issued upon exercise of the Warrants, will have been issued pursuant to an available exemption from registration Notes are no longer restricted securities (as defined in Rule 144 under the Securities Act), the Company will not, and will not permit any of its affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Notes that have been reacquired by any of them.
(e) During the period of three years after the Closing Date or, if earlier, until such time as the Notes are no longer restricted securities (as defined in Rule 144 under the Securities Act), the Company will not be or become an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act and will not be or become a closed-end investment company required to be registered, but not registered, under the Investment Company Act.
(f) The Company covenants and agrees that will furnish to you as early as practicable prior to the time of purchase, but no later than two business days prior thereto, a copy of the latest available unaudited interim consolidated financial statements, if it fails any, of (i) the Company and its Subsidiaries and (ii) Macpherson and GEMC, which have been read by the Company's independent certified public accountants and Macpherson's independent certified public accountants, respectively, as stated in their letters to register be furnished pursuant to Section 6(c) of this Agreement.
(g) In connection with the Warrant Shares offering, until the Initial Purchaser shall have notified the Company of the completion of the resale of the Notes, neither the Company nor any of its affiliates has or will, either alone or with one or more other persons, bid for or purchase for any account in which it or any of its affiliates has a beneficial interest any Notes; and neither it nor any of its affiliates will make bids or purchases for the purpose of creating actual, or apparent, active trading in, or of raising the price of, the Notes.
(h) For a period of 90 days after the date of the Offering Memorandum, neither the Company nor any of its Subsidiaries will offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any United States dollar-denominated debt securities issued by the Company or any of its Subsidiaries (other than the Exchange Notes as provided contemplated by the Registration Rights Agreement) in any transaction involving a public offering or a private placement in connection with intended resale under Rule 144A and having a maturity of more than three years from the date of issue or publicly disclose the intention to make any such offer, sale, pledge or disposal, without the prior written consent of the Initial Purchaser. Neither the Company nor any of its Subsidiaries will at any time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by Section 4(2) of the Securities Act or the safe harbor of Regulation S thereunder to cease to be applicable to the offer and sale of the Notes.
(i) The Company will apply the net proceeds from the sale of the Notes in the manner set forth under the caption "Use of Proceeds" in the Offering Memorandum.
(j) The Company will pay all expenses, fees and taxes (other than any transfer taxes and fees and disbursements of counsel for the Initial Purchaser except as set forth under Section 6 hereof and subclause (iv) below) in connection with (i) the preparation of the Offering Documents, and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to the Initial Purchaser (including costs of mailing and shipment), (ii) the preparation, issuance, execution, authentication and delivery of the Notes, (iii) the word processing and/or printing of this Agreement, the Indenture, and the reproduction and/or printing and furnishing of copies of each thereof to the Initial Purchaser (including costs of mailing and shipment), (iv) the determination of the eligibility of the Notes for investment under state securities or Blue Sky laws (including the legal fees and filing fees and other disbursements of counsel for the Initial Purchaser) and the printing and furnishing of copies of any Blue Sky surveys or legal investment surveys to the Initial Purchaser, (v) any fees payable to investment rating agencies with respect to the Notes (vi) the cost of qualifying the Notes for trading in the Private Offerings, Resale and Trading through Automated Linkages ("PORTAL") Market and any expenses incidental thereto and (vii) the performance of the Company's other obligations hereunder.
(k) The Company will use its best efforts to cause the Notes to be eligible for trading in the PORTAL Market upon issuance.
(l) The Company will comply with all of its agreements set forth in the Registration Rights Agreement between and all agreements set forth in the Holder and the Company, dated of even date herewith, or (ii) to issue the shares of Common Stock upon the proper exercise representation letters of the Warrant, then Company to DTC relating to the Holder may immediately commence an action approval of the Notes by DTC for specific performance"book-entry" transfer.
(m) The Company will cause each Note to bear the legend set forth in the form of Note attached as Exhibit 1 to Appendix A to the Indenture until such legend shall no longer be necessary or advisable because the Notes are no longer subject to the restrictions on transfer described therein.
Appears in 1 contract
Certain Covenants of the Company. (a) The Company shall take such steps as are necessary to cause the Company to continue to have sufficient authorized and unissued shares of Common Stock reserved in order to permit the exercise of the unexercised and un-expired portion of this Warrant, if any.
(b) The Company covenants and agrees that as long as any Warrant is outstanding:
(a) it will reserve and set apart and have at all Warrant Shares issued times, free from preemptive rights, a number of shares of authorized but unissued Common Stock or other securities or property deliverable upon the due exercise of the Warrants sufficient to enable it at any time to fulfill all its obligations thereunder;
(b) before taking any action which would cause an adjustment reducing the Current Warrant Price below the then par value of the shares of Common Stock issuable upon exercise of the Warrants, it will take any corporate action which may be necessary in order that the Company may validly and legally issue fully paid and nonassessable shares of such Common Stock at such adjusted Current Warrant Price;
(c) if any shares of Common Stock required to be reserved for the purposes of the exercise of this Warrant will, require registration with or approval of any governmental authority under any federal law (other than the Act) or under any state law before such shares may be issued upon issuance in accordance with the terms hereof, be duly authorized, validly issued, fully paid and non-assessable and free and clear of all taxes, liens, charges, and security interests created by the Company with respect to the issuance thereof.
(c) The Company will pay all documentary stamp taxes, if any, attributable to the initial issuance of Warrant Shares upon the exercise of this Warrant; , the Company will, at its expense, as expeditiously as possible, cause such shares to be duly registered or approved, as the case may be, provided, that if the issuance of such shares requires the Company to go through a full qualification process in any state other than California, New York or Delaware, the Company shall not be required to undertake such process unless the Warrantholders agree to pay the Company's reasonable expenses incurred in connection therewith;
(d) if and so long as the Common Stock is listed on any tax which may be payable in respect of any transfer involved national securities exchange (as defined in the issue Exchange Act), it will, at its expense, obtain and maintain the approval for listing upon official notice of this Warrant or issuance of any certificates for Warrant Shares in a name other than that all shares of the Holder Common Stock issuable upon the exercise of this Warrantthe Warrants at the time outstanding and maintain the listing of such shares after their issuance; and the Company will so list on such national securities exchange, will register under the Exchange Act (or any similar statute then in effect) and will maintain such listing of any other securities that at any time are issuable upon exercise of the Warrants if, and at the time that, any securities of the same class shall be listed on such national securities exchange by the Company;
(e) it will review its stock ledgers, stock transfer books and other corporate records periodically (and not less often than once in each calendar quarter) in order to determine whether any Warrantholder, based solely on the number of Warrant Shares owned of record and which may be acquired by the Warrantholder, is or shall have become, directly or indirectly, the beneficial owner of more than such percentage of any class of its equity securities (as defined in the Exchange Act) as shall cause such Warrantholder to be required to make any filings or declarations to the Company, the Commission or any national securities exchange pursuant to the provisions of the Exchange Act or any comparable federal statute, and the Company shall not be required will give prompt notice to issue or deliver such certificates unless or until the person or persons requesting the issuance thereof Warrantholder whenever it shall have paid to determined, upon the basis of the information disclosed by any such review, that such Warrantholder is or has become such a holder, which notice shall also specify the information upon which the Company bases such determination; provided, however, that the amount Company shall give such notice only once in each fiscal year to any Warrantholder whose percentage of such tax, or shall have established to the satisfaction beneficial ownership of the Company that such tax has been paid.
(d) This Warrant and, when so issued, the shares of Common Stock which may be issued upon exercise of the Warrants, will have been issued pursuant to an available exemption from registration under the Securities Act.
(e) The Company covenants and agrees that if it fails (i) to register the Warrant Shares as provided in a Registration Rights Agreement between the Holder and the Company, dated of even date herewith, or (ii) to issue the shares of Common Stock upon the proper exercise of the Warrant, then the Holder may immediately commence an action for specific performance.'s
Appears in 1 contract
Certain Covenants of the Company. (a) The Company shall take such steps as are necessary to cause the Company to continue to have sufficient authorized and unissued shares of Common Stock reserved in order to permit the exercise of the unexercised and un-expired unexpired portion of this Warrant, if any.
(b) The Company covenants and agrees that all Warrant Shares issued upon the due exercise of this Warrant will, upon issuance in accordance with the terms hereof, be duly authorized, validly issued, fully paid and non-assessable and free and clear of all taxes, liens, charges, and security interests created by the Company with respect to the issuance thereof.
(c) The Company will pay all documentary stamp taxes, if any, attributable to the initial issuance of Warrant Shares upon the exercise of this Warrant; provided, that the Company shall not be required to pay any tax which may be payable in respect of any transfer involved in the issue of this Warrant or of any certificates for Warrant Shares in a name other than that of the Holder upon the exercise of this Warrant, and the Company shall not be required to issue or deliver such certificates unless or until the person or persons requesting the issuance thereof shall have paid to the Company the amount of such tax, or shall have established to the satisfaction of the Company that such tax has been paid.
(d) This Warrant and, when so issued, the shares of Common Stock which may be issued upon exercise of the Warrants, will have been issued pursuant to an available exemption from registration under the Securities Act.
(e) The Company covenants and agrees that if it fails (i) to register the Warrant Shares as provided in a the Registration Rights Agreement between the Holder and the Company, dated of even date herewith, or (ii) to issue the shares of Common Stock upon the proper exercise of the Warrant, then the Holder may immediately commence an action for specific performanceperformance and/or damages.
Appears in 1 contract
Certain Covenants of the Company. The Company covenants and agrees with the Loan Trustee as follows:
(a) The Company shall take such steps as are necessary to cause On and after the Closing, the Company will cause to continue to have sufficient authorized be done, executed, acknowledged and unissued shares delivered such further acts, conveyances and assurances as the Loan Trustee shall reasonably request for accomplishing the purposes of Common Stock reserved in order to permit this Agreement and the exercise other Operative Documents; provided that any instrument or other document so executed by the Company will not expand any obligations or limit any rights of the unexercised and un-expired portion Company in respect of this Warrant, if anythe transactions contemplated by the Operative Documents.
(b) The Company covenants and agrees that all Warrant Shares issued upon Company, at its own expense, will cause the due exercise of this Warrant will, upon issuance in accordance Indenture (with the terms hereofIndenture Supplement covering the Aircraft attached) to be promptly filed and recorded, be duly authorizedor filed for recording, validly issued, fully paid and non-assessable and free and clear of all taxes, liens, charges, and security interests created by with the Company with respect FAA to the issuance thereofextent permitted under the Transportation Code and the rules and regulations of the FAA thereunder.
(c) The Company, at its expense, will take, or cause to be taken, such action with respect to the due and timely recording, filing, re-recording and refiling of the Indenture and any financing statements and any continuation statements or other instruments as are necessary to maintain, so long as the Indenture is in effect, the perfection of the security interests created by the Indenture or will furnish the Loan Trustee timely notice of the necessity of such action, together with such instruments, in execution form, and such other information as may be required to enable the Loan Trustee to take such action. In addition, the Company will pay any and all documentary recording, stamp taxes, if any, attributable to the initial issuance of Warrant Shares upon the exercise of this Warrant; provided, that the Company shall not be required to pay any tax which may be and other similar taxes payable in respect the United States, and in any other jurisdiction where the Aircraft is registered, in connection with the execution, delivery, recording, filing, re-recording and refiling of the Indenture or any such financing statements or other instruments. The Company will notify the Loan Trustee of any transfer involved change in its state of incorporation promptly after making such change or in any event within the issue period of this Warrant or time necessary under applicable law to prevent the lapse of any certificates for Warrant Shares in a name other than that perfection (absent refiling) of financing statements filed under the Holder upon the exercise of this Warrant, and the Company shall not be required to issue or deliver such certificates unless or until the person or persons requesting the issuance thereof shall have paid to the Company the amount of such tax, or shall have established to the satisfaction of the Company that such tax has been paidOperative Documents.
(d) This Warrant and, when so issued, the shares of Common Stock which may be issued upon exercise of the Warrants, will have been issued pursuant to an available exemption from registration under the Securities ActThe Company shall at all times maintain its corporate existence except as permitted by Section 6.02(e).
(e) The Company covenants and agrees that if it fails shall not consolidate with or merge into any other Person or convey, transfer or lease substantially all of its assets as an entirety to any Person, unless:
(i) the Person formed by such consolidation or into which the Company is merged or the Person that acquires by conveyance, transfer or lease substantially all of the assets of the Company as an entirety shall, if and to register the Warrant Shares as provided extent required under Section 1110 in order that the Loan Trustee shall continue to be entitled to any benefits of Section 1110 with respect to the Aircraft, be a Registration Rights Agreement between Certificated Air Carrier and shall execute and deliver to the Holder Loan Trustee an agreement containing the express assumption by such successor Person of the due and punctual performance and observance of each covenant and condition of the Operative Documents to which the Company is a party to be performed or observed by the Company;
(ii) immediately after giving effect to such transaction, no Event of Default shall have occurred and be continuing; and
(iii) the Company shall have delivered to the Loan Trustee, each Liquidity Provider and the Policy Provider a certificate signed by a Responsible Officer of the Company, dated and an opinion of even date herewithcounsel (which may be the Company's General Counsel or such other internal counsel to the Company as shall be reasonably satisfactory to the Loan Trustee, such Liquidity Provider and the Policy Provider), each stating that such consolidation, merger, conveyance, transfer or lease and the assumption agreement mentioned in clause (i) above comply with this Section 6.02(e) and that all conditions precedent herein provided relating to such transaction have been complied with (except that such opinion need not cover the matters referred to in clause (ii) above and may rely, as to issue the shares factual matters, on a certificate of Common Stock upon the proper exercise an officer of the WarrantCompany) and, then in the Holder case of such opinion, that such assumption agreement has been duly authorized, executed and delivered by such successor Person and is enforceable against such successor Person in accordance with its terms, except as the same may immediately commence be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the rights of creditors generally and by general principles of equity. Upon any consolidation or merger, or any conveyance, transfer or lease of substantially all of the assets of the Company as an action for specific performance.entirety in accordance with this
Appears in 1 contract
Certain Covenants of the Company. (a) The Company shall take such steps as are necessary to cause the Company to continue to have sufficient authorized and unissued shares of Common Stock reserved in order to permit the exercise of the unexercised and un-expired portion of this Warrant, if any.
(b) The Company covenants and agrees that all Warrant Shares issued upon the due exercise of this Warrant will, upon issuance in accordance with the terms hereof, be duly authorized, validly issued, fully paid and non-assessable and free and clear of all taxes, liens, charges, and security interests created by the Company with respect to the issuance thereof.that
(ca) The Company it will pay reserve and set apart and have at all documentary stamp taxestimes, if anyfree from preemptive rights, attributable to the initial issuance a number of Warrant Shares shares of authorized but unissued Common Stock or other securities or property deliverable upon the exercise of this Warrant; provided, that the Company shall not be required Warrants sufficient to pay enable it at any tax which may be payable in respect of any transfer involved in the issue of this Warrant or of any certificates for Warrant Shares in a name other than that of the Holder upon the exercise of this Warrant, and the Company shall not be required time to issue or deliver such certificates unless or until the person or persons requesting the issuance thereof shall have paid to the Company the amount of such tax, or shall have established to the satisfaction of the Company that such tax has been paid.fulfill all its obligations thereunder;
(db) This before taking any action which would cause an adjustment reducing the Current Warrant and, when so issued, Price below the then par value of the shares of Common Stock issuable upon exercise of the Warrants, it will take any corporate action which may be necessary in order that the Company may validly and legally issue fully paid and nonassessable shares of such Common Stock at such adjusted Current Warrant Price;
(c) if any shares of Common Stock required to be reserved for the purposes of the exercise of this Warrant require registration with or approval of any governmental authority under any federal law (other than the Act) or under any state law before such shares may be issued upon exercise of this Warrant, the WarrantsCompany will, at its expense, as expeditiously as possible, cause such shares to be duly registered or approved, as the case may be;
(d) if and so long as the Common Stock is listed on any national securities exchange (as defined in the Exchange Act), it will, at its expense, obtain and maintain the approval for listing upon official notice of issuance of all shares of Common Stock issuable upon the exercise of the Warrants at the time outstanding and maintain the listing of such shares after their issuance; and the Company will so list on such national securities exchange, will have been issued pursuant to an available exemption from registration register under the Securities Act.Exchange Act (or any similar statute then in effect) and will maintain such listing of any other securities that at any time are issuable upon exercise of the Warrants if, and at the time that, any securities of the same class shall be listed on such national securities exchange by the Company;
(e) The Company covenants it will review its stock ledgers, stock transfer books and agrees that if it fails other corporate records periodically (iand not less often than once in each calendar quarter) in order to register determine whether any Warrantholder is or shall have become, directly or indirectly, the Warrant Shares beneficial owner of more than such percentage of any class of its equity securities (as provided defined in a Registration Rights Agreement between the Holder and Exchange Act) as shall cause such Warrantholder to be required to make any filings or declarations to the Company, dated the Commission or any national securities exchange pursuant to the provisions of even date herewiththe Exchange Act or any comparable federal statute, or (ii) and the Company will give prompt notice to issue the shares of Common Stock such Warrantholder whenever it shall have determined, upon the proper exercise basis of the Warrantinformation disclosed by any such review, then that such Warrantholder is or has become such a holder, which notice shall also specify the Holder may information upon which the Company bases such determination; provided, however, that the -------- ------- Company shall give such notice only once in each fiscal year to any Warrantholder whose percentage of beneficial ownership of the Company's equity securities has not changed since the date of the giving of the immediately commence an preceding notice;
(f) so long as any of the Warrants or Warrant Shares are outstanding and owned by Coast, the Company will permit one representative of Coast, to attend all meetings of the Board of Directors of the Company and shall provide to Coast at least 10 days' notice of and all information given to the directors of the Company with respect to each regular meeting of the Board of Directors and such notice as is reasonable under the circumstances to allow such representatives to attend each special or emergency meeting of the Board of Directors; the Company shall also provide to Coast a copy of any written action for specific performanceby the Board of Directors of the Company in lieu of a meeting thereof; and within 30 days of each meeting of the Board of Directors, copies of the minutes of such meeting; and
(g) this Warrant shall be binding upon any corporation succeeding to the Company by merger, consolidation or acquisition of all or substantially all of the Company's assets.
Appears in 1 contract
Certain Covenants of the Company. The Company covenants and agrees with the Loan Trustee as follows:
(a) The Company shall take such steps as are necessary to cause On and after the Closing, the Company will cause to continue to have sufficient authorized be done, executed, acknowledged and unissued shares delivered such further acts, conveyances and assurances as the Loan Trustee shall reasonably request for accomplishing the purposes of Common Stock reserved in order to permit this Agreement and the exercise other Operative Documents; provided that any instrument or other document so executed by the Company will not expand any obligations or limit any rights of the unexercised and un-expired portion Company in respect of this Warrant, if anythe transactions contemplated by the Operative Documents.
(b) The Company covenants and agrees that all Warrant Shares issued upon will cause the due exercise of this Warrant will, upon issuance in accordance Indenture (with the terms hereofIndenture Supplement covering the Aircraft attached) to be promptly filed and recorded, be duly authorizedor filed for recording, validly issued, fully paid and non-assessable and free and clear of all taxes, liens, charges, and security interests created by with the Company with respect FAA to the issuance thereofextent permitted under the Transportation Code and the rules and regulations of the FAA thereunder.
(c) The Company, at its expense, will take, or cause to be taken, such action with respect to the recording, filing, re-recording and refiling of the Indenture and any financing statements or other instruments as are necessary to maintain, so long as the Indenture is in effect, the perfection of the security interests created by the Indenture or will furnish the Loan Trustee timely notice of the necessity of such action, together with such instruments, in execution form, and such other information as may be required to enable the Loan Trustee to take such action. In addition, the Company will pay any and all documentary recording, stamp taxes, if any, attributable to the initial issuance of Warrant Shares upon the exercise of this Warrant; provided, that the Company shall not be required to pay any tax which may be and other similar taxes payable in respect the United States, and in any other jurisdiction where the Aircraft is registered, in connection with the execution, delivery, recording, filing, re-recording and refiling of the Indenture or any such financing statements or other instruments. The Company will notify the Loan Trustee of any transfer involved change in the issue location of this Warrant or of any certificates for Warrant Shares its chief executive office (as such term is used in a name other than that Article 9 of the Holder upon Uniform Commercial Code as in effect in the exercise State of this Warrant, and Texas) promptly after making such change or in any event within the Company shall not be required period of time necessary under applicable law to issue or deliver such certificates unless or until prevent the person or persons requesting lapse of perfection (absent refiling) of financing statements filed under the issuance thereof shall have paid to the Company the amount of such tax, or shall have established to the satisfaction of the Company that such tax has been paidOperative Documents.
(d) This Warrant and, when so issued, the shares of Common Stock which may be issued upon exercise of the Warrants, will have been issued pursuant to an available exemption from registration under the Securities ActThe Company shall at all times maintain its corporate existence except as permitted by Section 6.02(e).
(e) The Company covenants and agrees that if it fails shall not consolidate with or merge into any other Person or convey, transfer or lease substantially all of its assets as an entirety to any Person, unless:
(i) the Person formed by such consolidation or into which the Company is merged or the Person that acquires by conveyance, transfer or lease substantially all of the assets of the Company as an entirety shall, if and to register the Warrant Shares as provided extent required under Section 1110 in order that the Loan Trustee shall continue to be entitled to any benefits of Section 1110 with respect to the Aircraft, be a Registration Rights Agreement between Citizen of the Holder United States and a Certificated Air Carrier and shall execute and deliver to the Loan Trustee an agreement containing the assumption by such successor Person of the due and punctual performance and observance of each covenant and condition of the Operative Documents to which the Company is a party to be performed or observed by the Company;
(ii) immediately after giving effect to such transaction, no Event of Default shall have occurred and be continuing; and
(iii) the Company shall have delivered to the Loan Trustee a certificate signed by a Responsible Officer of the Company, dated and an opinion of even date herewithcounsel (which may be the Company's General Counsel or such other internal counsel to the Company as shall be reasonably satisfactory to the Loan Trustee), each stating that such consolidation, merger, conveyance, transfer or lease and the assumption agreement mentioned in clause (i) above comply with this Section 6.02(e) and that all conditions precedent herein provided relating to such transaction have been complied with (except that such opinion need not cover the matters referred to in clause (ii) above and may rely, as to issue the shares factual matters, on a certificate of Common Stock upon the proper exercise an officer of the WarrantCompany) and, then in the Holder case of such opinion, that such assumption agreement has been duly authorized, executed and delivered by such successor Person and is enforceable against such successor Person in accordance with its terms, except as the same may immediately commence be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the rights of creditors generally and by general principles of equity. Upon any consolidation or merger, or any conveyance, transfer or lease of substantially all of the assets of the Company as an action entirety in accordance with this Section 6.02(e), the successor Person formed by such consolidation or into which the Company is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Agreement and the other Operative Documents with the same effect as if such successor Person had been named as the Company herein.
(f) The Company shall, for specific performanceas long as and to the extent required under Section 1110 in order that the Loan Trustee shall be entitled to any of the benefits of Section 1110 with respect to the Aircraft, remain a Certificated Air Carrier.
Appears in 1 contract
Certain Covenants of the Company. In further consideration of the agreements of the Initial Purchasers herein contained, the Company covenants as follows:
(a) The Company shall take such steps will furnish to the Initial Purchasers, without charge, as are necessary to cause many copies of the Preliminary Offering Circular and the Offering Circular (as supplemented or amended if the Company to continue to shall have sufficient authorized and unissued shares of Common Stock reserved in order to permit made any supplements or amendments thereto) as the exercise of the unexercised and un-expired portion of this Warrant, if anyRepresentative may reasonably request.
(b) The Company covenants will give the Initial Purchasers notice of its intention to prepare any amendment or supplement to the Preliminary Offering Circular or the Offering Circular, will furnish the Initial Purchasers and agrees that all Warrant Shares issued upon counsel to the due exercise Initial Purchasers with copies of this Warrant will, upon issuance in accordance with the terms hereof, be duly authorized, validly issued, fully paid and non-assessable and free and clear of all taxes, liens, chargessuch amendment or supplement, and security interests created by the Company with respect any such amendment or supplement to the issuance thereofPreliminary Offering Circular or the Offering Circular made subsequent to the time this Agreement becomes effective shall correct any untrue statement of a material fact or omission to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) If at any time prior to the completion of the initial resale of the Notes by the Initial Purchasers any event shall have occurred as a result of which it is necessary to amend or supplement the Offering Circular in order to make the statements therein, in light of the circumstances when the Offering Circular is delivered to a purchaser, not misleading, or if, in the reasonable judgment of the Initial Purchasers or counsel to the Initial Purchasers, such amendment or supplement is necessary to ensure that the initial resale of the Notes is exempt from the registration requirements of the Securities Act, the Company will, subject to paragraph (b) of this Section 6, forthwith amend or supplement the Offering Circular by furnishing, at its own expense, to the Initial Purchasers and to dealers (whose names and addresses are furnished to the Company by the Representative) to whom Notes may have been sold by the Initial Purchasers and, upon request, to any other dealers making such request, either amendments to the Offering Circular or supplements thereto so that the statements in the Offering Circular as so amended or supplemented will not, in light of the circumstances when the Offering Circular is delivered to a purchaser, be misleading, or so that such Offering Circular as so amended or supplemented will comply with any requirements necessary for exemption of the initial resale of the Notes from the registration requirements of the Securities Act, as the case may be.
(d) Notwithstanding any provision of paragraph (b) or (c) of this Section 6 to the contrary, the Company’s obligations under paragraphs (b) and (c) of this Section 6 shall terminate on the date upon which the Initial Purchasers and their affiliates cease to hold Notes acquired as part of their initial distribution, but in any event not later than nine months from the Closing Time.
(e) So long as any Notes shall remain outstanding, neither the Company nor any of its affiliates (as defined in Rule 501(b) of Regulation D) nor any person acting on behalf of the foregoing (other than the Initial Purchasers and any person acting on their behalf, to the extent that any of them may be deemed to be acting on behalf of the Company) shall solicit any offer to buy or offer to sell the Notes by means of any form of general solicitation or general advertising (within the meaning of Rule 502(c) of Regulation D) in a manner that would require the registration of the Notes under the Securities Act.
(f) So long as any Notes shall remain outstanding, neither the Company nor any of its affiliates (as defined in Rule 501(b) of Regulation D) nor any person acting on behalf of the foregoing (other than the Initial Purchasers and any person acting on their behalf, to the extent that any of them may be deemed to be acting on behalf of the Company) will engage in any directed selling efforts (as defined in Rule 902 under the Securities Act) with respect to the Notes in a manner that would require the registration of the Notes under the Securities Act.
(g) So long as any Notes shall remain outstanding, neither the Company nor any of its affiliates (as defined in Rule 501(b) of Regulation D) will directly, or through any person acting on behalf of the foregoing (other than the Initial Purchasers and any person acting on their behalf, to the extent that any of them may be deemed to be acting on behalf of the Company), sell, offer for sale, solicit offers to buy or otherwise negotiate in respect of, any security (as defined in the Securities Act) that is or will be integrated with the Notes in a manner that would require the registration of the Notes under the Securities Act.
(h) The Company agrees, so long as any of the Notes are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, to furnish to each holder of such restricted securities and to each prospective purchaser (as designated by such holder) of such restricted securities, upon the request of such holder or prospective purchaser, any and all financial and other information relating to the Company required to be delivered under Rule 144A(d)(4) under the Securities Act in connection with sales of the Notes under Rule 144A, if the Company is not required to file reports with the Commission as a reporting company under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or exempt from reporting pursuant to Rule 12g3-2b under the Exchange Act.
(i) The Company will cooperate with the Initial Purchasers to qualify the Notes for offer and sale under the securities or “blue sky” laws of such states and other jurisdictions as the Representative may reasonably request and to pay all documentary stamp taxesfiling fees, if any, attributable reasonable attorneys’ fees and disbursements in connection therewith in an amount not exceeding $15,000 in the aggregate (including filing fees and disbursements paid or incurred prior to the initial issuance of Warrant Shares upon the exercise of date this WarrantAgreement becomes effective); provided, however, that the Company shall not be required to qualify as a foreign corporation or to file a consent to service of process or to file annual reports or to comply with any other requirements deemed by the Company to be unduly burdensome.
(j) The Company will pay all costs and expenses incident to the performance of the obligations of the Company under this Agreement, including (i) the preparation of the Preliminary Offering Circular, the Offering Circular (including financial statements) and any tax which may be payable amendments or supplements thereto, (ii) the preparation and printing of the Notes and the Indenture, (iii) the issuance and delivery of the Notes to the Initial Purchasers (other than transfer taxes), (iv) the furnishing of the opinions, letters and certificates referred to in respect Section 4 hereof, (v) any fees charged by rating agencies for rating the Notes and (vi) the fees and expenses of any transfer involved trustee appropriate under the Indenture, including the fees and disbursements of counsel for such trustee in connection with the Indenture, and in the issue amounts agreed pursuant to separate agreements. It is understood that the Initial Purchasers shall be solely responsible to pay all fees and expenses of this Warrant or of any certificates for Warrant Shares in a name other than that of counsel to the Holder upon the exercise of this WarrantInitial Purchasers, and that the Company shall not be required liable to issue or deliver reimburse the Initial Purchasers for such certificates unless or until fees and expenses.
(k) If the person or persons requesting Initial Purchasers shall not take up and pay for the issuance thereof shall have paid Notes due to the Company the amount of such tax, or shall have established to the satisfaction failure of the Company that such tax has been paid.
(d) This Warrant and, when so issuedto comply with any of the conditions specified in Section 4 hereof, the shares Company shall reimburse the Initial Purchasers for all of Common Stock which may be issued upon exercise their reasonable out-of-pocket accountable expenses (including the reasonable and documented fees and expenses of outside counsel to the WarrantsInitial Purchasers), will have been issued pursuant to in an available exemption from registration under amount not exceeding a total of $150,000 incurred in connection with the Securities Actfinancing contemplated by this Agreement.
(e) The Company covenants and agrees that if it fails (i) to register the Warrant Shares as provided in a Registration Rights Agreement between the Holder and the Company, dated of even date herewith, or (ii) to issue the shares of Common Stock upon the proper exercise of the Warrant, then the Holder may immediately commence an action for specific performance.
Appears in 1 contract
Samples: Purchase Agreement (Mirant Americas Generating LLC)
Certain Covenants of the Company. (a) The Company shall take such steps A. So long as are necessary to cause the Company to continue to have sufficient authorized any unexpired Warrants remain outstanding and unissued shares of Common Stock reserved if required in order to permit comply with the exercise Securities Act of 1933, as amended (the unexercised and un-expired portion of this Warrant"Act"), if any.
(b) The the Company covenants and agrees that all Warrant Shares issued upon it will file such post-effective amendments to the due exercise of this Warrant will, upon issuance in accordance with registration statement filed pursuant to the terms hereof, be duly authorized, validly issued, fully paid and non-assessable and free and clear of all taxes, liens, charges, and security interests created by the Company Act with respect to the issuance thereof.
Warrants (cFile No. 333__ ) (or such other registration statements or post-effective amendments or supplements) as may be necessary to permit the Company to deliver to each person exercising a Warrant a prospectus meeting the requirements of Section 10(a)(3) of the Act and otherwise complying therewith, and will deliver such a prospectus to each such person. The Company further covenants and agrees that it will pay obtain and keep effective all documentary stamp taxespermits, if anyconsents and approvals of governmental agencies and authorities, attributable and will use its best efforts to the initial issuance of Warrant Shares upon the exercise of this Warrant; provided, that the Company shall not be required to pay any tax take all action which may be payable in respect necessary to qualify the Shares for sale under the securities laws of any transfer involved in the issue of this Warrant or of any certificates for Warrant Shares in a name other than that such of the Holder upon United States, as may be necessary to permit the free exercise of this Warrantthe Warrants, and the Company shall not be required to issue or deliver such certificates unless or until the person or persons requesting the issuance thereof shall have paid to the Company the amount of such taxissuance, or shall have established to the satisfaction sale, transfer and delivery of the Company that such tax has been paid.
(d) This Warrant and, when so issued, the shares of Common Stock which may be Shares issued upon exercise of the Warrants, will have been issued pursuant and to an available exemption from registration under maintain such qualifications during the Securities Actentire period in which the Warrants are exercisable.
(e) B. The Company covenants and agrees that if it fails shall take all such action as may be necessary to ensure that all Shares will at the time of delivery of certificates for such Shares (isubject to payment of the warrant exercise price) to register the Warrant Shares as provided in a Registration Rights Agreement between the Holder be duly and validly authorized and issued and fully paid and nonassessable Shares, free from any preemptive rights and taxes, liens, charges and security interests created by or imposed upon the Company, dated of even date herewith, .
C. The Company covenants and agrees that it will take all action which may be necessary to cause the Shares to be duly listed on the New York Stock Exchange or (ii) to issue any securities exchange on which the other shares of Common Stock upon of the proper Company are listed or on the National Market System of NASDAQ at the dates of exercise of the Warrant, then the Holder may immediately commence an action for specific performanceWarrants.
Appears in 1 contract
Samples: Common Stock Warrant Agreement (Wells Fargo & Co/Mn)
Certain Covenants of the Company. (a) The Company shall take such steps as are necessary to cause the Company to continue to have sufficient authorized and unissued shares of Common Stock reserved in order to permit the exercise of the unexercised and un-expired portion of this Warrant, if any.
(b) The Company covenants and agrees that all Warrant Shares issued upon the due exercise of this Warrant will, upon issuance in accordance with the terms hereof, be duly authorized, validly issued, fully paid and non-assessable and free and clear of all taxes, liens, charges, and security interests created by the Company with respect to the issuance thereof.that
(ca) The Company it will pay reserve and set apart and have at all documentary stamp taxestimes, if anyfree from preemptive rights, attributable to the initial issuance a number of Warrant Shares shares of authorized but unissued Common Stock or other securities or property deliverable upon the exercise of this Warrant; provided, that the Company shall not be required Warrants sufficient to pay enable it at any tax which may be payable in respect of any transfer involved in the issue of this Warrant or of any certificates for Warrant Shares in a name other than that of the Holder upon the exercise of this Warrant, and the Company shall not be required time to issue or deliver such certificates unless or until the person or persons requesting the issuance thereof shall have paid to the Company the amount of such tax, or shall have established to the satisfaction of the Company that such tax has been paid.fulfill all its obligations thereunder;
(db) This before taking any action which would cause an adjustment reducing the Warrant and, when so issued, Price below the then par value of the shares of Common Stock issuable upon exercise of the Warrants, it will take any corporate action which may be necessary in order that the Company may validly and legally issue fully paid and nonassessable shares of such Common Stock at such adjusted Warrant Price;
(c) if any shares of Common Stock required to be reserved for the purposes of the exercise of this Warrant require registration with or approval of any governmental authority under any federal law (other than the Act) or under any state law before such shares may be issued upon exercise of this Warrant, the WarrantsCompany will, at its expense, as expeditiously as possible, cause such shares to be duly registered or approved, as the case may be;
(d) if and so long as the Common Stock is listed on any national securities exchange (as defined in the Exchange Act), it will, at its expense, obtain and maintain the approval for listing upon official notice of issuance of all shares of Common Stock issuable upon the exercise of the Warrants at the time outstanding and maintain the listing of such shares after their issuance; and the Company will so list on such national securities exchange, will have been issued pursuant to an available exemption from registration register under the Securities Act.Exchange Act (or any similar statute then in effect) and will maintain such listing of any other securities that at any time are issuable upon exercise of the Warrants if, and at the time that, any securities of the same class shall be listed on such national securities exchange by the Company;
(e) The Company covenants and agrees that if it fails (i) to register so long as any of the Warrants or Warrant Shares are outstanding, the Company shall furnish the holder thereof such other information as shall be requested by the holder thereof (provided in a Registration Rights Agreement between that such holder shall have given the Holder Company reasonable notice and opportunity to prepare such information), with respect to any information required to comply with any regulations of any governmental agency or body having jurisdiction over such holder or reasonably required by the independent auditors of such holder; and
(f) this Warrant shall be binding upon any corporation succeeding to the Company by merger, consolidation or acquisition of all or substantially all of the Company, dated of even date herewith, or (ii) to issue the shares of Common Stock upon the proper exercise of the Warrant, then the Holder may immediately commence an action for specific performance's assets.
Appears in 1 contract
Certain Covenants of the Company. 5.1 Access and Investigation. During the period from the date hereof through the Closing of the Merger (the “Pre-Closing Period”), the Company shall, and shall cause the respective Representatives of the Company and Subsidiaries to: (a) The Company shall take such steps as are necessary provide Parent and Parent’s Representatives with reasonable access to cause the Company Acquired Companies’ Representatives, personnel and assets and to continue all existing books, records, Tax Returns, work papers and other documents and information relating to have sufficient authorized and unissued shares of Common Stock reserved in order to permit the exercise of the unexercised and un-expired portion of this Warrant, if any.
Acquired Companies; (b) The Company covenants provide Parent and agrees that all Warrant Shares issued upon Parent’s Representatives with such copies of the due exercise of this Warrant willexisting books, upon issuance in accordance with records, Tax Returns, work papers and other documents and information relating to the terms hereof, be duly authorized, validly issued, fully paid and non-assessable and free and clear of all taxes, liens, chargesAcquired Companies, and security interests created with such additional financial, operating and other data and information regarding the Acquired Companies and their financial condition, as Parent may reasonably request; and (c) fully cooperate with Parent in its reasonable investigation of the businesses of the Acquired Companies. Without limiting the generality of the foregoing, during the Pre-Closing Period, the Company shall furnish promptly to Parent (i) a copy of each report, schedule, registration statement and other document filed by the Company during the Pre-Closing Period with respect to the issuance thereof.
SEC, and (cii) The Company will pay all documentary stamp taxesother information concerning its business, if anyproperties and personnel as Parent may reasonably request. In addition, attributable to the initial issuance of Warrant Shares upon the exercise of this Warrant; provided, that the Company shall not be required during the Pre-Closing Period give prompt written notice to pay any tax which may be payable in respect of any transfer involved in the issue of this Warrant or of any certificates for Warrant Shares in a name other than that of the Holder upon the exercise of this WarrantParent, and the Company Parent shall not be required during the Pre-Closing Period give prompt written notice to issue or deliver such certificates unless or until the person or persons requesting the issuance thereof shall have paid to the Company the amount of such tax, or shall have established to the satisfaction of the Company that such tax has been paid.
(d) This Warrant and, when so issued, the shares of Common Stock which may be issued upon exercise of the Warrants, will have been issued pursuant to an available exemption from registration under the Securities Act.
(e) The Company covenants and agrees that if it fails (i) to register the Warrant Shares as provided in a Registration Rights Agreement between the Holder and the Company, dated if it becomes aware of even date herewith(A) any representation or warranty made by it contained in this Agreement becoming untrue or inaccurate in any material respect, (B) the failure by it to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement, (iiC) the occurrence of an event or circumstance that could be reasonably expected to issue make the shares timely satisfaction of Common Stock upon the proper exercise any of the Warrantconditions set forth in Annex I impossible or unlikely or that has had or would reasonably be expected to have a Company Material Adverse Effect, then and (D) the Holder may immediately commence an action for specific performance.commencement of any litigation or Proceeding against the Company, Parent or Acquisition Co.
Appears in 1 contract
Samples: Merger Agreement
Certain Covenants of the Company. (a) The Company shall take hereby agrees to use reasonable best efforts (i) to maintain the listing or quotation of the Common Stock on Nasdaq (or such steps as are necessary to cause other trading market that the Company to continue applies to have sufficient authorized and unissued shares of the Common Stock reserved in order to permit traded on) for so long as any Investor owns unregistered Securities that have not expired by their terms and (ii) as promptly as practicable following the exercise receipt of the unexercised Requisite Stockholder Approval, to secure the listing of the Conversion Shares and un-expired portion the Warrant Shares (subject to official notice of this Warrant, if anyissuance) on such trading market.
(b) The Company covenants shall file a Current Report on Form 8-K and agrees that all Warrant Shares press release disclosing the material terms of the transactions contemplated hereby. The Company shall, prior to such filing, furnish to the Investors for review a copy of such Form 8-K and press release. Such press release will be issued upon prior to market open on the due exercise second business day following the date of this Warrant will, upon issuance in accordance with Agreement and the terms hereof, Form 8-K will be duly authorized, validly issued, fully paid and non-assessable and free and clear of all taxes, liens, charges, and security interests created filed within the time prescribed by the Company with respect to regulations of the issuance thereofCommission.
(c) The Company will pay all documentary stamp taxesFor so long as any Investor holds unregistered Securities that have not expired by their terms, if any, attributable to the initial issuance of Warrant Shares upon the exercise of this Warrant; provided, that (i) the Company shall not be use its reasonable best efforts to timely file (or obtain extensions in respect thereof and file within the applicable grace period) all reports required to pay any tax which may be payable filed by the Company after the date hereof pursuant to the Exchange Act and (ii) if the Company is not required to file reports pursuant to the Exchange Act, it will prepare and furnish to the Investors and make publicly available in respect of any transfer involved in accordance with Rule 144(c) such information as is required for the issue of this Warrant or of any certificates for Investors to sell the Conversion Shares and the Warrant Shares in a name other than that of the Holder upon the exercise of this Warrant, and the Company shall not be required to issue or deliver such certificates unless or until the person or persons requesting the issuance thereof shall have paid to the Company the amount of such tax, or shall have established to the satisfaction of the Company that such tax has been paidunder Rule 144.
(d) This Warrant andNo claim will be made or enforced by the Company or, when so issued, with the shares of Common Stock which may be issued upon exercise consent of the WarrantsCompany, will have been issued any other person, that any Investor is an “Acquiring Person” or a “20% Stockholder” under any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or similar anti-takeover plan or arrangement (excluding the 19.99% Restriction) in effect or hereafter adopted by the Company or that any Investor could be deemed to trigger the provisions of any such plan or arrangement by virtue of receiving Securities pursuant to an available exemption from registration under the Securities Actthis Agreement.
(e) The Company covenants shall continue to reserve and agrees that if it fails (i) to register keep available at all times from the Warrant date of receipt of the Requisite Stockholder Approval through the date on which the Preferred Shares as provided have been converted in full, free of preemptive rights, a Registration Rights Agreement between the Holder and the Company, dated sufficient number of even date herewith, or (ii) to issue the shares of Common Stock upon for the proper purpose of enabling the Company to issue the Conversion Shares pursuant to any conversion of any Preferred Shares in accordance with the Certificate of Designations.
(f) The Company shall continue to reserve and keep available at all times through the earlier of the date on which the Warrants have been exercised in full and the expiration date of the Warrants, free of preemptive rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to issue the Warrant Shares pursuant to any exercise of the Warrant, then Warrants in accordance with the Holder may immediately commence an action for specific performanceterms of the Warrants.
Appears in 1 contract
Certain Covenants of the Company. (a) The Company shall take such steps A. So long as are necessary to cause the Company to continue to have sufficient authorized any unexpired Warrants remain outstanding and unissued shares of Common Stock reserved if required in order to permit comply with the exercise Securities Act of 1933, as amended (the unexercised and un-expired portion of this Warrant"Act"), if any.
(b) The the Company covenants and agrees that all Warrant Shares issued upon it will file such post-effective amendments to the due exercise of this Warrant will, upon issuance in accordance with registration statement filed pursuant to the terms hereof, be duly authorized, validly issued, fully paid and non-assessable and free and clear of all taxes, liens, charges, and security interests created by the Company Act with respect to the issuance thereof.
Warrants (cFile No. 333-__________) (or such other registration statements or post-effective amendments or supplements) as may be necessary to permit the Company to deliver to each person exercising a Warrant a prospectus meeting the requirements of Section 10(a)(3) of the Act and otherwise complying therewith, and will deliver such a prospectus to each such person. The Company further covenants and agrees that it will pay obtain and keep effective all documentary stamp taxespermits, if anyconsents and approvals of governmental agencies and authorities, attributable and will use its best efforts to the initial issuance of Warrant Shares upon the exercise of this Warrant; provided, that the Company shall not be required to pay any tax take all action which may be payable in respect necessary to qualify the Shares for sale under the securities laws of any transfer involved in the issue of this Warrant or of any certificates for Warrant Shares in a name other than that such of the Holder upon United States, as may be necessary to permit the free exercise of this Warrantthe Warrants, and the Company shall not be required to issue or deliver such certificates unless or until the person or persons requesting the issuance thereof shall have paid to the Company the amount of such taxissuance, or shall have established to the satisfaction sale, transfer and delivery of the Company that such tax has been paid.
(d) This Warrant and, when so issued, the shares of Common Stock which may be Shares issued upon exercise of the Warrants, will have been issued pursuant and to an available exemption from registration under maintain such qualifications during the Securities Actentire period in which the Warrants are exercisable.
(e) B. The Company covenants and agrees that if it fails shall take all such action as may be necessary to ensure that all Shares will at the time of delivery of certificates for such Shares (i) subject to register payment of the Warrant Shares as provided in a Registration Rights Agreement between the Holder Exercise Price) be duly and validly authorized and issued and fully paid and nonassessable Shares, free from any preemptive rights and taxes, liens, charges and security interests created by or imposed upon the Company, dated of even date herewith, .
C. The Company covenants and agrees that it will take all action which may be necessary to cause the Shares to be duly listed on the New York Stock Exchange or (ii) to issue any securities exchange on which the other shares of Common Stock upon of the proper Company are listed or on the National Market System of NASDAQ at the dates of exercise of the Warrant, then the Holder may immediately commence an action for specific performanceWarrants.
Appears in 1 contract
Certain Covenants of the Company. (a) The Company shall take such steps Notes will provide that, so long as are necessary to cause any of the Notes or Coupons remain outstanding, the Company will not and will not permit any Restricted Subsidiary (as defined below) to, incur, issue, assume, guarantee or suffer to continue exist any indebtedness for money borrowed (indebtedness for money borrowed and guarantees thereof shall be herein referred to have sufficient authorized and unissued as “Indebtedness”) secured by a mortgage, pledge, charge, lien or other form of encumbrance (hereafter referred to as “liens”) upon any Principal Operating Property (as defined below), or any shares of Common Stock reserved in order to permit stock of or Indebtedness of any Restricted Subsidiary, without effectively providing that the exercise of the unexercised and un-expired portion of this WarrantNotes (together with, if any.
(b) The Company covenants and agrees that all Warrant Shares issued upon the due exercise of this Warrant will, upon issuance in accordance with the terms hereof, be duly authorized, validly issued, fully paid and non-assessable and free and clear of all taxes, liens, charges, and security interests created by the Company with respect to the issuance thereof.
(c) The Company will pay all documentary stamp taxes, if any, attributable to the initial issuance of Warrant Shares upon the exercise of this Warrant; provided, that the Company shall not be required to pay so determine, any tax which may be payable in respect of any transfer involved in the issue of this Warrant or of any certificates for Warrant Shares in a name other than that of the Holder upon the exercise of this Warrant, and the Company shall not be required to issue or deliver such certificates unless or until the person or persons requesting the issuance thereof shall have paid to the Company the amount of such tax, or shall have established to the satisfaction indebtedness of the Company or such Restricted Subsidiary ranking equally with the Notes and then existing or thereafter created) shall be secured equally and ratably with such Indebtedness so long as such Indebtedness shall be so secured, except that the foregoing restriction shall not apply to: (i) liens on property of, or on any shares of stock of or Indebtedness of, any corporation existing at the time such tax has been paid.
corporation becomes a Restricted Subsidiary; (dii) This Warrant andliens in favor of the Company, when so issuedor any Restricted Subsidiary; (iii) liens in favor of any governmental body to secure progress, advance or other payments pursuant to any contract or provision of any statute; (iv) liens on property (including leasehold estates), shares of stock or Indebtedness existing at the time of acquisition thereof (including acquisition through merger or consolidation) or to secure the payment of all or any part of the purchase price thereof or construction thereon or to secure any Indebtedness incurred prior to, at the time of, or within 120 days after, the shares of Common Stock which may be issued upon exercise latest of the Warrantsacquisition, will have been issued pursuant to an available exemption from registration under the Securities Act.
(e) The Company covenants completion of construction or the commencement of full operation of such property or within 120 days after the acquisition of such shares or Indebtedness for the purpose of financing all or any part of the purchase price thereof or construction thereon and agrees related costs, it being understood that if it fails a bona fide commitment from a bank, insurance company or other lender or investor (not including the Company or any Subsidiary) for such financing is made prior to or within such 120-day period, the applicable lien shall be deemed to be included in this clause (iv) irrespective of whether such lien is created within such 120-day period; or (v) any extension, renewal or replacement (or successive extensions, renewals or replacements), as a whole or in part, of any lien referred to in the foregoing clauses (i) to register (iv), inclusive, provided, that such extension, renewal or replacement lien shall be limited to all or part of the Warrant Shares as provided in a Registration Rights Agreement between the Holder and the Companysame property, dated of even date herewith, or (ii) to issue the shares of Common Stock upon stock or Indebtedness that secured the proper exercise lien extended, renewed or replaced (plus improvements on such property). Notwithstanding the above, the Company and one or more Restricted Subsidiaries may, without securing the Notes, issue or assume secured Indebtedness which would otherwise be subject to the foregoing restrictions, provided that after giving effect thereto the aggregate amount of the Warrant, then the Holder may immediately commence an action for specific performance.such secured Indebtedness at such time does not exceed 5% of consolidated net worth. “
Appears in 1 contract
Certain Covenants of the Company. (a) a. The Company shall take such steps as are necessary to cause the Company to continue to have sufficient authorized and unissued shares of Common Stock reserved in order to permit the exercise of the unexercised and un-expired unexpired portion of this Warrant, if any.
(b) b. The Company covenants and agrees that all Warrant Exercise Shares issued upon the due exercise of this Warrant will, upon issuance in accordance with the terms hereof, be duly authorized, validly issued, fully paid and non-assessable and free and clear of all taxes, liens, charges, and security interests created by the Company with respect to the issuance thereof.
(c) c. The Company will pay all documentary stamp taxes, if any, attributable to the initial issuance of Warrant Exercise Shares upon the exercise of this Warrant; provided, that the Company shall not be required to pay any tax which may be payable in respect of any transfer involved in the issue of this Warrant or of any certificates for Warrant Exercise Shares in a name other than that of the Holder Holders upon the exercise of this Warrant, and the Company shall not be required to issue or deliver such certificates unless or until the person or persons requesting the issuance thereof shall have paid to the Company the amount of such tax, or shall have established to the satisfaction of the Company that such tax has been paid.
(d) d. This Warrant and, when so issued, the shares of Common Stock which may be issued upon exercise of the Warrants, when so issued, will have been issued issued, pursuant to an available exemption from registration under the Securities Act, and the securities laws of the State of Washington.
(e) e. The Company covenants and agrees that if it fails (i) to register the Warrant Exercise Shares as provided in a Registration Rights Agreement between the Holder Holders and the Company, dated of even date herewith, or (ii) to issue the shares of Common Stock upon the proper exercise of the Warrant, then then, in additional to all rights to liquidated damages set forth in the Holder Registration Rights Agreement, the Holders may immediately commence an action for specific performanceperformance and/or damages. The Company agrees that any judgment entered therein shall include all reasonable attorney's fees and costs of any kind or nature, whatsoever, including but not limited to expert witness fees, service fees and filing fees incurred by the Holders in conjunction with said action, and if damages are sought, the Holders shall be entitled to interest at the rate of 12% per annum on any damage award from the date of exercise.
Appears in 1 contract
Samples: Securities Purchase Agreement (Environmental Remediation Holding Corp)
Certain Covenants of the Company. (a) The Company shall take hereby agrees to use reasonable best efforts (i) to maintain the listing or quotation of the Common Stock on Nasdaq (or such steps as are necessary to cause other trading market that the Company to continue applies to have sufficient authorized and unissued shares of the Common Stock reserved in order to permit traded on) for so long as any Investor owns unregistered Securities, and (ii) as promptly as practicable following the exercise receipt of the unexercised and un-expired portion Requisite Stockholder Approval, to secure the listing of this Warrant, if anythe Conversion Shares (subject to official notice of issuance) on such trading market.
(b) The Company covenants shall file a Current Report on Form 8-K and agrees that all Warrant Shares press release disclosing the material terms of the transactions contemplated hereby. Such press release will be issued upon prior to market open on the due exercise Business Day following the date of this Warrant will, upon issuance in accordance with Agreement and the terms hereof, Form 8-K will be duly authorized, validly issued, fully paid and non-assessable and free and clear of all taxes, liens, charges, and security interests created filed within the time prescribed by the Company with respect to regulations of the issuance thereofCommission.
(c) The Company will pay all documentary stamp taxesFor so long as any Investor holds unregistered Securities, if any, attributable to the initial issuance of Warrant Shares upon the exercise of this Warrant; provided, that (i) the Company shall not be use its reasonable best efforts to timely file (or file within the applicable grace period after having obtained, if necessary, extensions in respect thereof) all reports required to pay any tax which may be payable in respect of any transfer involved in the issue of this Warrant or of any certificates for Warrant Shares in a name other than that of the Holder upon the exercise of this Warrant, and filed by the Company shall after the date hereof pursuant to the Exchange Act and (ii) if the Company is not be required to issue or deliver such certificates unless or until the person or persons requesting the issuance thereof shall have paid file reports pursuant to the Company the amount of such taxExchange Act, or shall have established it will prepare and furnish to the satisfaction of Investors and make publicly available in accordance with Rule 144(c) such information as is required for the Company that such tax has been paidInvestors to sell the Conversion Shares under Rule 144.
(d) This Warrant andNo claim will be made or enforced by the Company or, when so issued, with the shares of Common Stock which may be issued upon exercise consent of the WarrantsCompany, will have been issued any other person, that any Investor is an “Acquiring Person” or a “20% Stockholder” under any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or similar anti-takeover plan or arrangement in effect or hereafter adopted by the Company or that any Investor could be deemed to trigger the provisions of any such plan or arrangement by virtue of receiving Securities pursuant to an available exemption from registration under the Securities Actthis Agreement.
(e) The Company covenants shall continue to reserve and agrees that if it fails (i) to register keep available at all times from the Warrant Shares as provided date of receipt of the Requisite Stockholder Approval through the date on which the Securities have been converted in full, free of preemptive rights, a Registration Rights Agreement between the Holder and the Company, dated sufficient number of even date herewith, or (ii) to issue the shares of Common Stock upon for the proper exercise purpose of enabling the Warrant, then Company to issue the Holder may immediately commence an action for specific performanceConversion Shares pursuant to any conversion of any Securities in accordance with the Certificate of Designations.
Appears in 1 contract
Samples: Securities Purchase Agreement (Marinus Pharmaceuticals Inc)
Certain Covenants of the Company. 4.1 Operation of the Company’s Business.
(a) The Company shall take such steps as are necessary to cause During the period from the date of this Agreement through the Effective Time (the “Pre-Closing Period”), the Company shall: (i) ensure that each of the Acquired Companies conducts its business and operations (A) in the ordinary course of business, and (B) in material compliance with all applicable Legal Requirements and the requirements of all Acquired Company Contracts; (ii) use Commercially Reasonable Efforts to continue ensure that each of the Acquired Companies preserves intact its current business organization, keeps available the services of its current officers and employees (except when in the good faith judgment of the Company such services are not in the best interests of the Company) and maintains its relations and goodwill with all material suppliers, customers, landlords, creditors, licensors, licensees, employees and other Persons having business relationships with the respective Acquired Companies, other than as set forth in Section 4.1(a)(ii) of the Company Disclosure Letter; (iii) provide all notices, assurances and support required by any Material Contract relating to have sufficient authorized and unissued shares of Common Stock reserved any Proprietary Asset in order to permit ensure that no condition under such Material Contract occurs which could result in, or could increase the exercise likelihood of any transfer by any Acquired Company of any Proprietary Asset; (iv) make all filings and payments necessary or reasonable to keep all registered or issued Proprietary Assets that are material to and used in the business in full force and effect; (v) keep in full force and effect (with the same scope and limits of coverage) all insurance policies in effect as of the unexercised and un-expired portion date of this WarrantAgreement covering all material assets of the Acquired Companies and (vi) to the extent reasonably requested by Parent, if anycause its officers to report regularly to Parent concerning the status of the Acquired Companies’ respective businesses. Notwithstanding anything contained in this Section 4.1 or in this Agreement to the contrary, but subject to Section 4.1(b)(xvii) in the case of Non-Electrograph Liabilities that are current liabilities and Section 4.1(b)(xviii) in the case of Non-Electrograph Assets that are current assets, the Company shall be entitled to (1) satisfy, extinguish or otherwise discharge any Non-Electrograph Liabilities, (2) sell, assign, transfer or otherwise dispose of any Non-Electrograph Assets, (3) enter into transactions to sell, transfer, convey, assign terminate or otherwise dispose of the Designated Real Property Leases and the Xxxx Lease, as long as any such actions described in clauses (1), (2) or (3) above: (A) do not result in additional Indebtedness to any of the Acquired Companies; (B) do not detrimentally affect the ability to conduct or operate the business of Electrograph; (C) do not result in further liabilities or obligations of any kind or nature to Parent or any of its Subsidiaries from and after the Effective Time; and (D) are not with a Related Party or other Affiliate of the Acquired Companies.
(b) The During the Pre-Closing Period, the Company covenants shall not, and agrees shall not permit any of the other Acquired Companies to, take any of the following actions, without the prior written consent of Parent:
(i) except as provided in Section 1.9 declare, accrue, set aside or pay any dividend or make any other distribution in respect of any shares of capital stock or repurchase, redeem or otherwise reacquire any shares of capital stock or other securities, except repurchases of unvested shares at cost in connection with the termination of the employment or consulting relationship with any employee or consultant pursuant to stock option or purchase agreements existing as of the date of this Agreement;
(ii) sell, issue, deliver, grant or authorize the sale, issuance, delivery or grant of (A) any capital stock or other security, (except that all Warrant Shares issued the Company may issue Company Common Stock upon the due valid exercise of Company Options outstanding as of the date of this Warrant will, upon issuance Agreement in accordance with their terms), (B) any Stock Rights, Company Options or equity-based compensation awards, including any awards under the terms hereofCompany’s 1996 Stock Option Plan or the Company’s 2005 Incentive Compensation Plan, be duly authorized, validly issued, fully paid and non-assessable and free and clear of all taxes, liens, charges, and (C) any instrument convertible into or exchangeable for any capital stock or other security interests created by the Company or (D) enter into any Contract with respect to the issuance sale, voting, repurchase or registration of any capital stock or other securities;
(iii) except as provided in Section 1.9 amend or waive any of its rights under, or accelerate the vesting under, any provision of any of the Company’s stock option plans, any provision of any agreement evidencing any outstanding stock option or otherwise modify any of the terms of any outstanding option or any related Contract;
(iv) amend or permit the adoption of any amendment to any of the Acquired Companies Constituent Documents, or effect or become a party to any merger, consolidation, share exchange, business combination, recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction;
(v) acquire any equity interest or other interest in any other Entity;
(vi) make capital expenditures that exceed $250,000 in the aggregate;
(vii) except as set forth in Section 4.1(b)(vii) of the Company Disclosure Letter, enter into any Contract, or modify or amend any existing Contract, providing for (A) severance or termination pay, (B) indemnification of officers and directors, or (C) benefits which are contingent upon the occurrence of a transaction involving the Company of the nature contemplated by this Agreement or otherwise granting any severance or termination pay to any present or former director, officer or employee of any Acquired Company; provided however, that the Company shall be obligated to take the actions set forth in Section 4.1(b)(vii) of the Company Disclosure Letter prior to the Effective Time and nothing in this Agreement shall be interpreted to restrict the Company from taking any such actions;
(viii) except as otherwise permitted by the last sentence of Section 4.1(a), purchase, lease, license or otherwise acquire any right or other asset from any other Person or sell, transfer, convey, pledge, encumber, grant a security interest in or otherwise dispose of, or lease or license, any right or other asset to any other Person (except for (A) purchases and sales of inventory by the Company in the ordinary course of business or (B) purchases and sales of assets by the Company not having a value, or not requiring payments to be made or received, in excess of $50,000 individually and $250,000 in the aggregate), or waive, relinquish or otherwise impair any material right or any duties or obligations of confidentiality;
(ix) abandon or fail to enforce any Proprietary Assets that are material to and used in the business, operations or products of the Acquired Companies;
(x) lend money or other property to any Person, including, without limitation, any present or former director, officer or employee of the Company or any Acquired Company, or incur or guarantee any indebtedness;
(xi) except for payments and prepayments permitted by the last sentence of Section 4.1(a) or as set forth in Section 4.1(b)(xi) of the Company Disclosure Letter, incur, assume or prepay any Indebtedness, or assume, guarantee, endorse or otherwise become liable or responsible for the obligations of any other Person;
(xii) except as otherwise permitted by the last sentence of Section 4.1(a), (A) enter into any Contract that would constitute a Material Contract had it been entered into as of the date of this Agreement, other than in the ordinary course of business or (B) terminate, cancel or request any material change in any Material Contract or any Contract entered into pursuant to clause (A) above;
(xiii) waive, release, assign, settle or compromise any material Legal Proceedings;
(xiv) except in the ordinary course of business, (A) establish, adopt, amend, terminate or make contributions to any Acquired Company Employee Plan (except as otherwise required by applicable Legal Requirements or as set forth in Section 4.1(b)(xiv) of the Company Disclosure Letter) or any plan, agreement, program, policy, trust, fund or other arrangement that would be an Acquired Company Employee Plan if it were in existence as of the date of this Agreement; (B) pay any bonus or make any profit-sharing or similar payment to, or increase the amount of the hourly wage rates, salary, commissions, fringe benefits or other compensation or remuneration payable to, any of its present or former directors, officers or employees, except as set forth in Section 4.1(b)(xiv) of the Company Disclosure Letter; or (C) become obligated to do any of the foregoing;
(xv) change any of its methods of accounting or Tax or accounting practices except as required by GAAP or applicable Tax Legal Requirements;
(xvi) make or revoke any material Tax elections or file any amended Tax Returns except as required by applicable Legal Requirements;
(xvii) satisfy, extinguish or otherwise discharge any Non-Electrograph Liabilities that are current liabilities of the Acquired Companies for more than fair market value thereof;
(xviii) sell, assign, transfer or otherwise dispose of any Non-Electrograph Assets that are current assets of the Acquired Companies for less than the fair market value thereof;
(xix) incur or otherwise assume any liabilities or other obligations in connection with the Terminating Operations;
(xx) take or agree to take any action which would result in the failure to satisfy the conditions provided for in Section 6.1 or Section 6.2; or
(xxi) authorize, agree or commit to take any of the actions described in clauses “(i)” through “(xx)” of this Section 4.1(b).
(c) The During the Pre-Closing Period, the Company will shall, and shall cause the other Acquired Companies to:
(i) prepare and timely file all Tax Returns required to be filed by them on or before the Closing Date (“Post-Signing Returns”), except as otherwise required by applicable laws;
(ii) consult with Parent with respect to all material Post-Signing Returns and deliver drafts of such Post-Signing Returns to Parent no later than ten business days prior to the date on which such Post-Signing Returns are required to be filed after giving effect to any applicable extensions;
(iii) fully and timely pay all documentary stamp taxes, if any, attributable to the initial issuance of Warrant Shares upon the exercise of this Warrant; provided, that the Company shall not be required to pay any tax which may be Taxes due and payable in respect of any transfer involved such Post-Signing Returns that are so filed except as required by applicable Legal Requirements;
(iv) properly reserve (and reflect such reserve in their books and records and financial statements) for all Taxes payable by them for which no Post-Signing Return is due prior to the issue of this Warrant or Effective Time;
(v) notify Parent of any certificates for Warrant Shares Legal Proceeding or audit pending or threatened in a name other than that writing against the Acquired Companies in respect of the Holder upon the exercise of this Warrantany Tax matter, including Tax liabilities and refund claims, and the Company not settle or compromise any such Legal Proceeding or audit without Parent’s prior written consent, which consent shall not be required unreasonably withheld; and
(vi) terminate all Tax Sharing Agreements to issue or deliver which the Acquired Companies are a party such certificates unless or until the person or persons requesting the issuance thereof shall have paid to the Company the amount of such tax, or shall have established to the satisfaction of the Company that such tax has been paidthere are no further liabilities thereunder.
(d) This Warrant andNotwithstanding anything to the contrary contained herein, when so issued, the shares of Common Stock which may be issued upon exercise of the Warrants, will have been issued pursuant to an available exemption from registration under the Securities Act.
(e) The Company covenants and agrees that if it fails nothing contained in this Agreement shall (i) give Parent, directly or indirectly, the right to register the Warrant Shares as provided in a Registration Rights Agreement between the Holder and control the Company, dated of even date herewith, ’s operations prior to the Closing or (ii) to issue prohibit the shares of Common Stock upon Company from purchasing inventory for the proper exercise operation of the Warrant, then the Holder may immediately commence business of any Acquired Company in an action for specific performanceamount not to exceed $5,000,000 in any single or series of related transactions with any single vendor.
Appears in 1 contract
Certain Covenants of the Company. (a) The Company shall take such steps A. So long as are necessary to cause the Company to continue to have sufficient authorized any unexpired Warrants remain outstanding and unissued shares of Common Stock reserved if required in order to permit comply with the exercise Securities Act of 1933, as amended (the unexercised and un-expired portion of this Warrant"Act"), if any.
(b) The the Company covenants and agrees that all Warrant Shares issued upon it will file such post-effective amendments to the due exercise of this Warrant will, upon issuance in accordance with registration statement filed pursuant to the terms hereof, be duly authorized, validly issued, fully paid and non-assessable and free and clear of all taxes, liens, charges, and security interests created by the Company Act with respect to the issuance thereof.
Warrants (cFile No. 33-______) (or such other registration statements or post-effective amendments or supplements) as may be necessary to permit the Company to deliver to each person exercising a Warrant a prospectus meeting the requirements of Section 10(a)(3) of the Act and otherwise complying therewith, and will deliver such a prospectus to each such person. The Company further covenants and agrees that it will pay obtain and keep effective all documentary stamp taxespermits, if anyconsents and approvals of governmental agencies and authorities, attributable and will use its best efforts to the initial issuance of Warrant Shares upon the exercise of this Warrant; provided, that the Company shall not be required to pay any tax take all action which may be payable in respect necessary to qualify the Shares for sale under the securities laws of any transfer involved in the issue of this Warrant or of any certificates for Warrant Shares in a name other than that such of the Holder upon United States, as may be necessary to permit the free exercise of this Warrantthe Warrants, and the Company shall not be required to issue or deliver such certificates unless or until the person or persons requesting the issuance thereof shall have paid to the Company the amount of such taxissuance, or shall have established to the satisfaction sale, transfer and delivery of the Company that such tax has been paid.
(d) This Warrant and, when so issued, the shares of Common Stock which may be Shares issued upon exercise of the Warrants, will have been issued pursuant and to an available exemption from registration under maintain such qualifications during the Securities Actentire period in which the Warrants are exercisable.
(e) B. The Company covenants and agrees that if it fails shall take all such action as may be necessary to ensure that all Shares will at the time of delivery of certificates for such Shares (isubject to payment of the warrant exercise price) to register the Warrant Shares as provided in a Registration Rights Agreement between the Holder be duly and validly authorized and issued and fully paid and nonassessable Shares, free from any preemptive rights and taxes, liens, charges and security interests created by or imposed upon the Company, dated of even date herewith, .
C. The Company covenants and agrees that it will take all action which may be necessary to cause the Shares to be duly listed on the New York Stock Exchange or (ii) to issue any securities exchange on which the other shares of Common Stock upon of the proper Company are listed or on the National Market System of NASDAQ at the dates of exercise of the Warrant, then the Holder may immediately commence an action for specific performanceWarrants.
Appears in 1 contract
Samples: Common Stock Warrant Agreement (Star Banc Corp /Oh/)
Certain Covenants of the Company. The Company covenants and agrees with each Purchaser as follows:
(a) The Company shall take such steps as are necessary to cause the Company to continue to have sufficient authorized and unissued shares of Common Stock reserved in order to permit the exercise proceeds of the unexercised issuance of the Securities as described in this Agreement shall be used to purchase new equipment for the Company’s continuous flow CO2 cleansing process and unPxx.xx pre-expired portion cleaning systems (estimated at $1,500,000), reduce trade payables (estimated at $1,000,000 to $1,200,000), repay one short term note of this Warrant$315,000 with no attached warrants and fund operations to expected cash flow positive in August 2008, if anywith the remainder of the proceeds to be available for growth initiatives approved by the Board of Directors.
(b) The None of the Company covenants and agrees or any of its Affiliates will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any “security” (as defined in the Securities Act) that all Warrant Shares issued upon the due exercise of this Warrant will, upon issuance in accordance could be integrated with the terms hereof, be duly authorized, validly issued, fully paid and non-assessable and free and clear sale of all taxes, liens, charges, and security interests created by the Company with respect to Securities in a manner which would require the issuance thereofregistration under the Securities Act of the Securities.
(c) The Company will pay all documentary stamp taxesnot become, if any, attributable at any time prior to the initial issuance expiration of Warrant Shares upon three years after the exercise of this Warrant; providedClosing Date, an open-end investment company, unit investment trust, closed-end investment company or face-amount certificate company that the Company shall not be is or is required to pay any tax which may be payable in respect of any transfer involved in registered under the issue of this Warrant or of any certificates for Warrant Shares in a name other than that of the Holder upon the exercise of this Warrant, and the Investment Company shall not be required to issue or deliver such certificates unless or until the person or persons requesting the issuance thereof shall have paid to the Company the amount of such tax, or shall have established to the satisfaction of the Company that such tax has been paidAct.
(d) This Warrant and, when so issued, the shares of Common Stock which may be issued upon exercise None of the Warrantsproceeds of the Series B Stock will be used to reduce or retire any insider note or convertible debt held by an officer or director of the Company, will have been issued pursuant except to an available exemption from registration under the Securities Actextent any such notes or debt are being cancelled as consideration for purchase of Shares by a Purchaser hereunder.
(e) The Company covenants and agrees that if it fails Subject to Section 10 of this Agreement, the Conversion Shares will be traded on the OTC Bulletin Board, or such market on which the Company’s shares are subsequently listed or traded, immediately following the later of (i) to register the Warrant Shares as provided in a Registration Rights Agreement between the Holder and the Company, dated of even date herewith, their issuance or (ii) declaration of effectiveness of the Registration Statement by the SEC.
(f) The Company will use its best efforts to do and perform all things required to be done and performed by it under this Agreement and the other Transaction Documents and to satisfy all conditions precedent on its part to the obligations of the Purchasers to purchase and accept delivery of the Securities.
(g) For so long as any shares of Series B Stock are outstanding, the Company shall not issue any debt or equity securities with rights or preferences superior to those of the Series B Stock with respect to the distribution of assets on any liquidation, dissolution or winding up of the Company, without the consent of a majority of the then outstanding shares of Series B Stock.
(h) On the Initial Closing Date, the Company agrees to issue to each of Hxxxxx and Bxxxx-Xxxxx 1997 Trust in connection with their appointment to the Company’s Board of Directors, a warrant, substantially in the form attached hereto as Exhibit D, exercisable for 10,912,964 shares of Common Stock, at an exercise price of $0.020 per share (the “Initial Warrants”). Promptly following the Second Closing Date, the Company agrees to issue additional warrants (the “Second Closing Warrants” and, together with the Initial Warrants, the “Warrants”) exercisable for a number of shares of Common Stock upon such that together with the proper exercise Initial Warrants, Hxxxxx and Bxxxx-Xxxxx 1997 Trust would each hold pursuant to such warrants (and exclusive of any shares of Preferred Stock held), 1% of the WarrantCompany’s Fully Diluted Capitalization (calculated assuming no further issuances between the Initial Closing Date and the Second Closing Date), then at an exercise price of $0.025 per share. “Fully Diluted Capitalization” shall mean all outstanding shares of capital stock, and assuming the Holder may immediately commence an action for specific performanceconversion of all outstanding warrants, options, notes and other convertible securities.
Appears in 1 contract
Samples: Securities Subscription Agreement (Eco2 Plastics Inc)
Certain Covenants of the Company. (a) The Company shall take such steps as are necessary to cause the Company to continue to have sufficient authorized and unissued shares of Common Stock reserved in order to permit the exercise of the unexercised and un-expired unexpired portion of this Warrant, if any.
(b) The Company covenants and agrees that all Warrant Shares issued upon the due exercise of this Warrant will, upon issuance in accordance with the terms hereof, be duly authorized, validly issued, fully paid and non-assessable and free and clear of all taxes, liens, charges, and security interests created by the Company with respect to the issuance thereof.
(c) The Company will pay all documentary stamp taxes, if any, attributable to the initial issuance of Warrant Shares upon the exercise of this Warrant; provided, that the Company shall not be required to pay any tax which may be payable in respect of any transfer involved in the issue of this Warrant or of any certificates for Warrant Shares in a name other than that of the Holder upon the exercise of this Warrant, and the Company shall not be required to issue or deliver such certificates unless or until the person or persons requesting the issuance thereof shall have paid to the Company the amount of such tax, or shall have established to the satisfaction of the Company that such tax has been paid.
(d) This Warrant and, when so issued, the shares of Common Stock which may be issued upon exercise of the Warrants, will have been issued pursuant to an available exemption from registration under the Securities Act.
(e) The Company covenants and agrees that if it fails (i) to register the Warrant Shares as provided in a Registration Rights Agreement between the Holder and the Company, dated of even date herewith, or (ii) to issue the shares of Common Stock upon the proper exercise of the Warrant, then the Holder may immediately commence an action for specific performance.
Appears in 1 contract
Samples: Warrant Agreement (Commodore Applied Technologies Inc)
Certain Covenants of the Company. (a) The Company shall take such steps as are necessary to cause the Company to continue to have sufficient authorized and unissued shares of Common Stock reserved in order to permit the exercise of the unexercised and un-expired unexpired portion of this Warrant, if any.
(b) The Company covenants and agrees that all Warrant Exercise Shares issued upon the due exercise of this Warrant will, upon issuance in accordance with the terms hereof, be duly authorized, validly issued, fully paid and non-assessable and free and clear of all taxes, liens, charges, and security interests created by the Company with respect to the issuance thereof.
(c) The Company will pay all documentary stamp taxes, if any, attributable to the initial issuance of Warrant Exercise Shares upon the exercise of this Warrant; provided, that the Company shall not be required to pay any tax which may be payable in respect of any transfer involved in the issue of this Warrant or of any certificates for Warrant Exercise Shares in a name other than that of the Holder Holders upon the exercise of this Warrant, and the Company shall not be required to issue or deliver such certificates unless or until the person or persons requesting the issuance thereof shall have paid to the Company the amount of such tax, or shall have established to the satisfaction of the Company that such tax has been paid.
(d) This Warrant and, when so issued, the shares of Common Stock which may be issued upon exercise of the Warrants, when so issued, will have been issued issued, pursuant to an available exemption from registration under the Securities Act, and the securities laws of the state of residency of the Holder.
(e) The Company covenants and agrees that if it fails (i) to register the Warrant Exercise Shares as provided in a Registration Rights Agreement between the Holder Holders and the Company, dated of even date herewith, or (ii) to issue the shares of Common Stock upon the proper exercise of the Warrant, then then, in additional to all rights to liquidated damages set forth in the Holder Registration Rights Agreement, the Holders may immediately commence an action for specific performanceperformance and/or damages. The Company agrees that any judgment entered therein shall include all reasonable attorney's fees and costs of any kind or nature, whatsoever, including but not limited to expert witness fees, service fees and filing fees incurred by the Holders, in conjunction with said action, and if damages are sought, the Holders shall be entitled to interest at the rate of 12% per annum on any damage award from the date of exercise.
Appears in 1 contract
Samples: Warrant Agreement (Environmental Remediation Holding Corp)
Certain Covenants of the Company. The Company covenants and agrees with the Loan Trustee as follows:
(a) The Company shall take such steps as are necessary to cause On and after the Closing, the Company will cause to continue to have sufficient authorized be done, executed, acknowledged and unissued shares delivered such further acts, conveyances and assurances as the Loan Trustee reasonably requests for accomplishing the purposes of Common Stock reserved in order to permit this Agreement and the exercise other Operative Documents; provided that any instrument or other document so executed by the Company will not expand any obligations or limit any rights of the unexercised and un-expired portion Company in respect of this Warrant, if anythe transactions contemplated by the Operative Documents.
(b) The Company covenants and agrees that all Warrant Shares issued upon will cause the due exercise of this Warrant will, upon issuance in accordance Indenture (with the terms hereofIndenture Supplement covering the Aircraft attached) to be promptly filed and recorded, be duly authorizedor filed for recording, validly issued, fully paid and non-assessable and free and clear of all taxes, liens, charges, and security interests created by with the Company with respect FAA to the issuance thereofextent permitted under the Transportation Code and the rules and regulations of the FAA thereunder.
(c) The Company, at its expense, will take, or cause to be taken, such action with respect to the recording, filing, re-recording and refiling of the Indenture and any financing statements or other instruments as are necessary to maintain, so long as the Indenture is in effect, the perfection of the security interests created by the Indenture or will furnish the Loan Trustee timely notice of the necessity of such action, together with such instruments, in execution form, and such other information as may be required to enable the Loan Trustee to take such action. In addition, the Company will pay any and all documentary recording, stamp taxes, if any, attributable to the initial issuance of Warrant Shares upon the exercise of this Warrant; provided, that the Company shall not be required to pay any tax which may be and other similar taxes payable in respect the United States, and in any other jurisdiction where the Aircraft is registered, in connection with the execution, delivery, recording, filing, re-recording and refiling of the Indenture or any such financing statements or other instruments. The Company will notify the Loan Trustee of any transfer involved change in its jurisdiction of organization (as such term is used in Article 9 of the Uniform Commercial Code as in effect in the issue State of this Warrant Georgia) promptly after making such change or in any event within the period of any certificates for Warrant Shares in a name other than that time necessary under applicable law to prevent the lapse of perfection (absent refiling) of financing statements filed under the Holder upon the exercise of this Warrant, and the Company shall not be required to issue or deliver such certificates unless or until the person or persons requesting the issuance thereof shall have paid to the Company the amount of such tax, or shall have established to the satisfaction of the Company that such tax has been paidOperative Documents.
(d) This Warrant and, when so issued, the shares of Common Stock which may be issued upon exercise of the Warrants, will have been issued pursuant to an available exemption from registration under the Securities ActThe Company shall at all times maintain its corporate existence except as permitted by Section 6.02(e).
(e) The Company covenants and agrees that if it fails shall not consolidate with or merge into any other Person or convey, transfer or lease substantially all of its assets as an entirety to any Person, unless:
(i) the successor or transferee entity shall, if and to register the Warrant Shares as provided extent required under Section 1110 in order that the Loan Trustee shall continue to be entitled to any benefits of Section 1110 with respect to the Aircraft, be a Registration Rights Agreement between Citizen of the Holder United States and a Certificated Air Carrier and shall execute and deliver to the Loan Trustee an agreement containing the express assumption by such successor or transferee entity of the due and punctual performance and observance of each covenant and condition of the Operative Documents to which the Company is a party to be performed or observed by the Company;
(ii) immediately after giving effect to such transaction, no Event of Default shall have occurred and be continuing; and
(iii) the Company shall have delivered to the Loan Trustee a certificate signed by a Responsible Officer of the Company, dated and an opinion of even date herewithcounsel (which may be internal counsel to the Company), each stating that such consolidation, merger, conveyance, transfer or lease and the assumption agreement mentioned in clause (i) above comply with this Section 6.02(e) and that all conditions precedent herein provided relating to such transaction have been complied with (except that such opinion need not cover the matters referred to in clause (ii) above and may rely, as to issue the shares factual matters, on a certificate of Common Stock upon the proper exercise an officer of the WarrantCompany) and, then in the Holder case of such opinion, that such assumption agreement has been duly authorized, executed and delivered by such successor Person and is enforceable against such successor Person in accordance with its terms, except as the same may immediately commence be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the rights of creditors generally and by general principles of equity. Upon any consolidation or merger, or any conveyance, transfer or lease of substantially all of the assets of the Company as an action entirety in accordance with this Section 6.02(e), the successor Person formed by such consolidation or into which the Company is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Agreement and the other Operative Documents with the same effect as if such successor Person had been named as the Company herein.
(f) The Company shall remain a Certificated Air Carrier for specific performanceas long as and to the extent required under Section 1110 in order that the Loan Trustee shall be entitled to any of the benefits of Section 1110 with respect to the Aircraft.
Appears in 1 contract
Certain Covenants of the Company. The Company covenants and agrees with MAG as follows:
(a) The Company shall take such steps will not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any “security” (as are necessary to cause defined in the Securities Act) which could be integrated with the sale of the Warrants in a manner which would require the registration under the Securities Act of the Warrants. For the avoidance of doubt, the parties agree that the conversion into Common Stock of the Company to continue to have sufficient authorized of the Preferred Stock ,the Series H Convertible Preferred Stock, the Series I Convertible Preferred Stock, and unissued the outstanding $750,000 Convertible Secured Promissory Notes (the “Convertible Notes”) of the Company, and exercise for 732,064 shares of Common Stock reserved in order to permit the exercise of the unexercised and un-expired portion Company of this Warrant, if anyoutstanding warrants of the Company (the “Outstanding Warrants”) does not constitute any such transaction that would be so integrated with the sale of the Warrants.
(b) The Company covenants and agrees that all Warrant Shares issued upon the due exercise of this Warrant willwill use its commercially reasonable efforts to avoid becoming, upon issuance in accordance with the terms hereof, be duly authorized, validly issued, fully paid and non-assessable and free and clear of all taxes, liens, charges, and security interests created by the Company with respect at any time prior to the issuance thereofexpiration of three years after the Closing Date, an open-end investment company, unit investment trust, closed-end investment company or face-amount certificate company that is or is required to be registered under the Investment Company Act.
(c) The Company will pay all documentary stamp taxes, if any, attributable to the initial issuance of Warrant Shares upon the exercise of this Warrant; provided, that the Company shall not be required to pay any tax which may be payable in respect of any transfer involved Except as set forth in the issue of this Warrant or of any certificates for Warrant Shares in a name other than that Disclosure Schedule, none of the Holder upon the exercise of this Warrant, and the Company shall not be required to issue or deliver such certificates unless or until the person or persons requesting the issuance thereof shall have paid to the Company the amount of such tax, or shall have established to the satisfaction proceeds of the Company that such tax has been paidWarrants will be used to reduce or retire any insider note or convertible debt held by an officer or director of the Company.
(d) This Warrant and, when so issuedSubject to Section 9 of this Agreement, the Warrant Shares will be eligible for listing on the OTC Bulletin Board or such market on which the Company’s shares of Common Stock which may be issued upon exercise are subsequently listed or traded, immediately following the effectiveness of the Warrants, will have been issued pursuant to an available exemption from registration under the Securities ActRegistration Statement (as defined in Section 9).
(e) The Company covenants will use its commercially reasonable efforts to ensure that no officer or director of the Company sells any shares of Company Common Stock from the Closing Date until the date that is 90 days following the effective date of the Registration Statement, as defined in Section 10 below; provided, however, that this provision shall not restrict Ocean Park Advisors, LLC or the principals thereof (collectively, “OPA”) or certain officers and agrees that if it fails (i) to register directors of the Warrant Shares as provided in a Registration Rights Agreement between the Holder and the Company, dated of even date herewith, or (ii) to issue Company from selling the shares of Common Stock issuable upon (i) the proper conversion of the Series I Preferred Stock held by OPA, (ii) the exercise of up to an aggregate of 339,568 options held by such officers and directors prior to the date hereof or (iii) the exercise of 25 percent of the options issued to OPA pursuant to the Company’s 2006 Incentive Compensation Plan in connection with the acquisition of VSF. The Company represents that each of its officers and directors is aware of this commitment and has agreed to use his or her best efforts not to sell any shares of Company Common Stock during this period.
(f) The Company will use commercially reasonable efforts to obtain the Shareholder Approval and to effect the reincorporation of the Company in Delaware as promptly as possible, or in the event that such Shareholder Approval is not obtainable, the Company will use commercially reasonable efforts to obtain the Shareholder Approval to effect an amendment to the Company’s Amended and Restated Articles of Incorporation as promptly as possible, in either case resulting in a sufficient number of authorized shares for the Company to reserve a sufficient number of authorized but unissued shares of Common Stock to issue the Warrant Shares. The Company shall use commercially reasonable efforts to ensure that the Warrant Shares will be duly authorized and reserved for issuance, and that, when issued upon exercise of the WarrantWarrants in accordance with the terms thereof, then such Warrant Shares will be validly issued, fully paid and nonassessable.
(g) The Company shall use its reasonable commercial efforts to obtain consents from the Holder may immediately commence an action for specific performanceCompany’s existing preferred stockholders and secured debt holders to convert the securities of the Company held by them, including the Series H Convertible Preferred Stock and the Series I Convertible Preferred Stock and the $750,000 Convertible Secured Promissory Notes (the “Convertible Notes”), into Common Stock of the Company on the Closing Date.
(h) The Company shall use its reasonable commercial efforts to obtain consents from the Company’s existing warrant holders such that all outstanding warrants shall be exercised prior to the Closing Date, or the holders thereof shall otherwise relinquish their rights under the warrant agreements and the warrants shall be retired and extinguished upon the Closing Date.
(i) The Company will use its reasonable commercial efforts to do and perform all things required to be done and performed by it under this Agreement and the other Transaction Documents and to satisfy all conditions precedent on its part to the obligations of MAG to purchase and accept delivery of the Warrants.
Appears in 1 contract
Certain Covenants of the Company. (a) The Company shall take such steps as are necessary to cause the Company to continue to have sufficient authorized and unissued shares of Class A Common Stock reserved in order to permit the exercise of the unexercised and un-expired unexpired portion of this Warrant, if any.
(b) The Company covenants and agrees that all Warrant Shares issued upon the due exercise of this Warrant will, upon issuance in accordance with the terms hereof, be duly authorized, validly issued, fully paid and non-assessable and free and clear of all taxes, liens, charges, and security interests created by the Company with respect to the issuance thereof.
(c) The Company will pay all documentary stamp taxes, if any, attributable to the initial issuance of Warrant Shares upon the exercise of this Warrant; provided, that the Company shall not be required to pay any tax which may be payable in respect of any transfer involved in the issue of this Warrant or of any certificates for Warrant Shares in a name other than that of the Holder upon the exercise of this Warrant, and the Company shall not be required to issue or deliver such certificates unless or until the person or persons requesting the issuance thereof shall have paid to the Company the amount of such tax, or shall have established to the satisfaction of the Company that such tax has been paid.
(d) This Warrant and, when so issued, the shares of Class A Common Stock which may be issued upon exercise of the Warrants, will have been issued issued, pursuant to an available exemption from registration under the Securities Act.
(e) The Company covenants and agrees that if it fails (i) to register the Warrant Shares as provided in a Registration Rights Agreement between the Holder and the Company, dated of even date herewith, or (ii) to issue the shares of Class A Common Stock upon the proper exercise of the Warrant, then the Holder may immediately commence an action for specific performanceperformance and/or damages.
Appears in 1 contract
Samples: Warrant Agreement (Interiors Inc)
Certain Covenants of the Company. (a) The Company shall take such steps A. So long as are necessary to cause the Company to continue to have sufficient authorized any unexpired Warrants remain outstanding and unissued shares of Common Stock reserved if required in order to permit comply with the exercise Securities Act of 1933, as amended (the unexercised and un-expired portion of this Warrant“Act”), if any.
(b) The the Company covenants and agrees that all Warrant Shares issued upon it will file such post-effective amendments to the due exercise of this Warrant will, upon issuance in accordance with registration statement filed pursuant to the terms hereof, be duly authorized, validly issued, fully paid and non-assessable and free and clear of all taxes, liens, charges, and security interests created by the Company Act with respect to the issuance thereof.
Warrants (cFile No. 333___) (or such other registration statements or post-effective amendments or supplements) as may be necessary to permit the Company to deliver to each person exercising a Warrant a prospectus meeting the requirements of Section 10(a)(3) of the Act and otherwise complying therewith, and will deliver such a prospectus to each such person. The Company further covenants and agrees that it will pay obtain and keep effective all documentary stamp taxespermits, if anyconsents and approvals of governmental agencies and authorities, attributable and will use its best efforts to the initial issuance of Warrant Shares upon the exercise of this Warrant; provided, that the Company shall not be required to pay any tax take all action which may be payable in respect necessary to qualify the Shares for sale under the securities laws of any transfer involved in the issue of this Warrant or of any certificates for Warrant Shares in a name other than that such of the Holder upon United States, as may be necessary to permit the free exercise of this Warrantthe Warrants, and the Company shall not be required to issue or deliver such certificates unless or until the person or persons requesting the issuance thereof shall have paid to the Company the amount of such taxissuance, or shall have established to the satisfaction sale, transfer and delivery of the Company that such tax has been paid.
(d) This Warrant and, when so issued, the shares of Common Stock which may be Shares issued upon exercise of the Warrants, will have been issued pursuant and to an available exemption from registration under maintain such qualifications during the Securities Actentire period in which the Warrants are exercisable.
(e) B. The Company covenants and agrees that if it fails shall take all such action as may be necessary to ensure that all Shares will at the time of delivery of certificates for such Shares (isubject to payment of the warrant exercise price) to register the Warrant Shares as provided in a Registration Rights Agreement between the Holder be duly and validly authorized and issued and fully paid and nonassessable Shares, free from any preemptive rights and taxes, liens, charges and security interests created by or imposed upon the Company, dated of even date herewith, .
C. The Company covenants and agrees that it will take all action which may be necessary to cause the Shares to be duly listed on the New York Stock Exchange or (ii) to issue any securities exchange on which the other shares of Common Stock upon of the proper Company are listed or on the National Market System of NASDAQ at the dates of exercise of the Warrant, then the Holder may immediately commence an action for specific performanceWarrants.
Appears in 1 contract
Samples: Equity Securities Warrant Agreement (USB Capital XII)
Certain Covenants of the Company. (a) The Company shall take such steps as are necessary to cause the Company to continue to have sufficient authorized and unissued shares of Common Stock reserved in order to permit the exercise of the unexercised and un-expired unexpired portion of this Warrant, if any.. Execution Copy October 29, 2002 SB Enterprises Warrant for Note Extension Page 5 of 7 --------------------------------------------------------------------------------
(b) The Company covenants and agrees that all Warrant Shares issued upon the due exercise of this Warrant will, upon issuance in accordance with the terms hereof, be duly authorized, validly issued, fully paid and non-assessable and free and clear of all taxes, liens, charges, and security interests created by the Company with respect to the issuance thereof.
(c) The Company will pay all documentary stamp taxes, if any, attributable to the initial issuance of Warrant Shares upon the exercise of this Warrant; provided, that the Company shall not be required to pay any tax which may be payable in respect of any transfer involved in the issue of this Warrant or of any certificates for Warrant Shares in a name other than that of the Holder upon the exercise of this Warrant, and the Company shall not be required to issue or deliver such certificates unless or until the person or persons requesting the issuance thereof shall have paid to the Company the amount of such tax, or shall have established to the satisfaction of the Company that such tax has been paid.
(d) This Warrant and, when so issued, the shares of Common Stock which may be issued upon exercise of the Warrants, will have been issued pursuant to an available exemption from registration under the Securities Act.
(e) The Company covenants and agrees that if it fails (i) to register the Warrant Shares as provided in a Registration Rights Agreement between the Holder and the Company, dated of even date herewith, or (ii) to issue the shares of Common Stock upon the proper exercise of the Warrant, then the Holder may immediately commence an action for specific performance.
Appears in 1 contract
Samples: Warrant Agreement (Commodore Applied Technologies Inc)
