Consideration; Payment of Expenses. (a) In consideration of the services to be provided for hereunder, the Company shall pay to the Underwriters or their respective designees their pro rata portion (based on the Securities purchased) of the following compensation with respect to the Securities which they are offering: (i) A cash fee payable at Closing equal to seven percent (7%) of the aggregate gross proceeds raised in the Offering; and (ii) The Representative’s Warrants. (b) The Company grants the Representative the right of first refusal for a period of twelve (12) months from the Effective Date to act as lead managing underwriter and book runner or minimally as a co-lead manager and co-book runner and/or co-lead placement agent with at least 50.0% of the economics; or, in the case of a three-handed deal, 33.0% of the economics, for any and all future equity, equity-linked or debt (excluding commercial bank debt) offerings undertaken by the Company or any subsidiaries of the Company. The Company shall provide written notice to Representative with terms of such offering and if Representative fails to accept in writing any such proposal for such public or private sale within 15 days after receipt of a written notice from the Company containing such proposal, then Representative will have no claim or right with respect to any such sale contained in any such notice. (c) The Representative reserves the right to reduce any item of compensation or adjust the terms thereof as specified herein in the event that a determination shall be made by FINRA to the effect that the Underwriters’ aggregate compensation is in excess of FINRA Rules or that the terms thereof require adjustment. (d) Whether or not the transactions contemplated by this Agreement, the Registration Statement and the Prospectus are consummated or this Agreement is terminated, the Company hereby agrees to pay all costs and expenses incident to the performance of its obligations hereunder (provided any expenses exceeding $10,000 shall be subject to the Company’s prior written approval), including the following ($35,000 of which has previously been paid by the Company): (i) all expenses in connection with the preparation, printing, formatting for XXXXX and filing of the Registration Statement, any Preliminary Prospectus and the Prospectus and any and all amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers; (ii) all fees and expenses in connection with filings with FINRA’s Public Offering System; (iii) all fees and expenses in connection with filing of the Registration Statement and Prospectus with the Commission; (iv) all fees, disbursements and expenses of the Company’s counsel and accountants in connection with the registration of the Securities under the Securities Act and the Offering; (v) all reasonable expenses in connection with the qualifications of the Securities for offering and sale under state or foreign securities or blue sky laws, including up to $10,000 for the fees of Underwriters’ Counsel in connection with such qualification and in connection with any blue sky survey undertaken by such counsel; (vi) all fees and expenses in connection with listing the Securities on the Nasdaq Capital Market; (vii) all reasonable travel expenses of the Company’s officers and employees and any other expense of the Company incurred in connection with attending or hosting meetings with prospective purchasers of the Securities (“Road Show Expenses”); (viii) any stock transfer taxes incurred in connection with this Agreement or the Offering; (ix) the cost of preparing certificates representing the Securities; (x) the cost and charges of any transfer agent or registrar for the Securities; (xi) any reasonable cost and expenses in conducting satisfactory due diligence investigation and analysis of the Company’s officers and directors; (xii) any reasonable expenses and fees incurred by Underwriters’ Counsel; and (xiii) all other costs and expenses incident to the performance of the Company obligations hereunder which are not otherwise specifically provided for in this Section 5. (e) In addition to the costs and expenses set forth in Section 5(d) above, the Company will be responsible for: (i) the cost of two (2) “tombstone” advertisements to be placed in appropriate daily or weekly periodicals of the Representative’s choice (i.e., The Wall Street Journal and The New York Times); and (ii) the cost of leather bound volumes of the Offering documents and Offering commemorative lucite (or other reasonable form) memorabilia, both to be supplied to the Representative, in such quantities as Representative may reasonably request. (f) It is understood, however, that except as provided in this Section 5, and Sections 7, 8 and 11(d) hereof, the Underwriters will pay all of their own costs and expenses. Notwithstanding anything to the contrary in this Section 5, in the event that this Agreement is terminated pursuant to Section 11(b) hereof, or subsequent to a Material Adverse Change, the Company will pay, less any advances previously paid (the “Advances”), all out-of-pocket expenses of the Underwriters (including but not limited to fees and disbursements of Underwriters’ Counsel and reasonable travel) incurred in connection herewith which shall be limited to expenses which are actually incurred as allowed under FINRA Rule 5110 and the aggregate amount of such expenses to be reimbursed by the Company shall not exceed $100,000.
Appears in 5 contracts
Samples: Underwriting Agreement (Good Times Restaurants Inc), Underwriting Agreement (Good Times Restaurants Inc), Underwriting Agreement (Good Times Restaurants Inc)
Consideration; Payment of Expenses. (a) In consideration of the services to be provided for hereunder, the Company shall pay to the Underwriters or their respective designees their pro rata portion (based on the Securities purchased) of the following compensation with respect to the Securities which they are offering:
(i) A cash fee payable at Closing An underwriting discount equal to seven percent (7%) of the aggregate gross proceeds raised in the Offering; and
(ii) The Representative’s Warrants.
(biii) The Additionally, the Company grants the Representative the right of first refusal for a period of twelve (12) months from the Effective Date effective date of the Registration Statement to act as lead managing underwriter and sole book runner (or minimally as a co-lead manager and co-book runner and/or co-lead placement agent with at least 50.080% of the economics; or, in the case of a three-handed deal, 33.0% of the economics, ) for any and all future public or private equity, equity-linked or debt offerings (excluding commercial bank debt) offerings undertaken by the Company Company, its Subsidiary(ies), or any subsidiaries of the Companysuccessor thereto. The Company shall provide written notice to the Representative with the terms of such offering and if the Representative fails to accept in writing any such proposal for such public or private sale within 15 twenty (20) days after receipt of a such written notice from the Company containing such proposalnotice, then the Representative will have no claim or right with respect to any such sale contained in any such noticeoffering(s).
(civ) The Representative reserves the right to reduce any item of compensation or adjust the terms thereof as specified herein in the event that a determination shall be made by FINRA to the effect that the Underwriters’ aggregate compensation is in excess of FINRA Rules rules or that the terms thereof require adjustment.
(dv) Whether or not the transactions contemplated by this Agreement, the Registration Statement and the Prospectus are consummated or this Agreement is terminated, the Company hereby agrees to pay all costs and expenses incident to the performance of its obligations hereunder (provided any expenses exceeding $10,000 shall be subject to the Company’s prior written approval), including the following ($35,000 of which has previously been paid by the Company):following:
(i1) all expenses in connection with the preparation, printing, formatting for XXXXX EXXXX and filing of the Registration Statement, any Preliminary Prospectus and the Prospectus and any and all exhibits, amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers;
(ii2) all filing fees and expenses in connection with filings with FINRA’s Public Offering System;
(iii) all fees and expenses in connection with filing of the Registration Statement and Prospectus with the Commission;
(iv3) all fees, disbursements and expenses of the Company’s counsel counsel, accountants and accountants other agents and representatives in connection with the registration of the Securities under the Securities Act and the Offering;
(v4) all reasonable expenses in connection with the qualifications of the Securities for offering and sale under state or foreign securities or blue sky lawslaws (including, including up to $10,000 for without limitation, all filing and registration fees, and the fees and disbursements of Underwriters’ Counsel in connection with such qualification and in connection with any blue sky survey undertaken by such counsel;
(vi5) all fees and expenses in connection with listing the Securities on the Nasdaq Capital Marketa national securities exchange;
(vii6) all reasonable expenses, including travel expenses and lodging expenses, of the Company’s officers officers, directors and employees and any other expense of the Company incurred in connection with attending or hosting meetings with prospective purchasers of the Securities (“Road Show Expenses”)and any fees and expenses associated with the i-Deal system and NetRoadshow;
(viii7) any stock transfer taxes or other taxes incurred in connection with this Agreement or the Offeringoffering, including any stock transfer taxes payable upon the transfer of securities to the Underwriters;
(ix) 8) the cost of preparing costs associated with preparing, printing and delivering certificates representing the Securities;
(x9) the cost and charges of any transfer agent or registrar for the Securities;
(xi10) any reasonable cost and expenses in conducting satisfactory due diligence investigation and analysis of (subject to the Company’s officers and directors;
following proviso, other costs (xii) any reasonable expenses and fees incurred by including Underwriters’ Counsel; and
(xiiicounsel’s fees and expenses) all other costs and expenses incident to the performance of the Company obligations hereunder which Offering that are not otherwise specifically provided for in this Section 5.4(k);
(e11) In addition costs relating to the costs and expenses set forth in Section 5(d) above, the Company will be responsible for: (i) the cost of two (2) “tombstone” advertisements to be placed in appropriate daily or weekly periodicals background checks of the RepresentativeCompany’s choice (i.e.officers and directors, The Wall Street Journal and The New York Times)up to $15,000 in the aggregate; and (ii) the cost of leather bound volumes of the Offering documents and Offering commemorative lucite (or other reasonable form) memorabilia, both to be supplied to the Representative, in such quantities as Representative may reasonably request.
(f) It is understoodprovided, however, that except as provided in this Section 5, all such costs and Sections 7, 8 expenses (including Underwriters’ counsel’s fees and 11(dexpenses) hereof, that are incurred by the Underwriters will pay all of their own costs and expenses. Notwithstanding anything to the contrary in this Section 5, in the event that this Agreement is terminated pursuant to Section 11(b) hereof, or subsequent to a Material Adverse Change, the Company will pay, less any advances previously paid (the “Advances”), all out-of-pocket expenses of the Underwriters (including but not limited to fees and disbursements of Underwriters’ Counsel and reasonable travel) incurred in connection herewith which shall be limited to expenses which are actually incurred as allowed under FINRA Rule 5110 and the aggregate amount of such expenses to be reimbursed by the Company shall not exceed $100,000125,000 in the aggregate.
Appears in 2 contracts
Samples: Underwriting Agreement (American Resources Corp), Underwriting Agreement (American Resources Corp)
Consideration; Payment of Expenses. (a) In consideration of the services to be provided for hereunder, the Company shall pay to the Underwriters or their respective designees their pro rata portion (based on the Securities purchased) of the following compensation with respect to the Securities which they are offering:
(i) A cash fee payable at Closing an underwriting discount equal to seven percent (7%) of the aggregate gross proceeds raised in the Offering; and;
(ii) a non-accountable expense allowance of one percent (1%) of the gross proceeds of the Offering;
(iii) an accountable expense allowance of up to $250,000, including, among other things, all reasonable fees and expenses of the Underwriters’ outside legal counsel; any reasonable costs and expenses incurred in conducting background checks of the Company’s officers and directors by a background search firm acceptable to the Underwriters; and the costs associated with bound volumes and mementos in such quantities as the Underwriters may reasonably request (the “Accountable Out-of-Pocket Expenses”). The Representative’s WarrantsCompany has advanced an amount of $[80,000] (the “Advances”) to the Representative in anticipation of any Accountable Out-of-Pocket Expenses to be incurred by the Underwriters. The Representative shall promptly return to the Company the Advances against the Accountable Out-of-Pocket Expenses, to the extent that such Accountable Out-of-Pocket Expenses are not actually incurred in accordance with FINRA Rule 5110(g)(4)(A).
(b) The Company grants the Representative the right of first refusal for a period of twelve (12) months from the Effective Date to act as lead managing underwriter and book runner or minimally as a co-lead manager and co-book runner and/or co-lead placement agent with at least 50.0% of the economics; or, in the case of a three-handed deal, 33.0% of the economics, for any and all future equity, equity-linked or debt (excluding commercial bank debt) offerings undertaken by the Company or any subsidiaries of the Company. The Company shall provide written notice to Representative with terms of such offering and if Representative fails to accept in writing any such proposal for such public or private sale within 15 days after receipt of a written notice from the Company containing such proposal, then Representative will have no claim or right with respect to any such sale contained in any such notice.
(c) The Representative reserves Underwriters reserve the right to reduce any item of compensation or adjust the terms thereof as specified herein in the event that a determination shall be made by FINRA to the effect that the Underwriters’ aggregate compensation is in excess of FINRA Rules or that the terms thereof require adjustment.
(dc) Whether or not the transactions contemplated by this Agreement, the Registration Statement Statement, the Disclosure Materials, and the Prospectus are consummated or this Agreement is terminated, the Company hereby agrees to pay bear all costs and expenses incident to the performance of its obligations hereunder (provided any expenses exceeding $10,000 shall be subject to Offering, which is not included in the Company’s prior written approval)maximum accountable expense allowance, including the following ($35,000 of which has previously been paid by the Company):following:
(i) all expenses in connection with the preparation, printing, formatting for XXXXX and filing of the Registration Statement, any Preliminary Prospectus and the Prospectus and any and all amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers;
(ii) all fees and expenses in connection with filings with FINRA’s Public Offering System;
(iii) all fees and expenses in connection with filing of the Registration Statement and Prospectus with the Commission;
(iv) all fees, disbursements and expenses of the Company’s counsel and accountants in connection with the registration of the Securities under the Securities Act and the Offering;
(viv) all reasonable expenses in connection with the qualifications of the Securities for offering and sale under state or foreign securities or blue sky laws, including up to $10,000 for the fees of Underwriters’ Counsel in connection with such qualification and in connection with any blue sky survey undertaken by such counsel;
(viv) all fees and expenses in connection with listing the Securities on the Nasdaq Capital Marketa national securities exchange;
(viivi) all reasonable travel expenses of the Company’s officers officers, directors and employees and any other expense of the Company incurred in connection with attending or hosting meetings with prospective purchasers of the Securities Securities;
(“Road Show Expenses”)vii) all the road show expenses incurred by the Company;
(viii) any stock transfer taxes or other taxes incurred in connection with this Agreement or the Offering;
(ix) the costs associated with book building, prospectus tracking and compliance software and the cost of preparing certificates representing the Securities;
(x) the cost and charges of any transfer agent or registrar for the Securities;
(xi) any reasonable cost and expenses in conducting satisfactory due diligence investigation and analysis of the Company’s officers and directors;
(xii) any reasonable expenses and fees incurred by Underwriters’ Counsel; and
(xiii) all other costs and expenses incident to the performance of the Company obligations hereunder which are not otherwise specifically provided for in this Section 5.
(e) In addition to the costs and expenses set forth in Section 5(d) above, the Company will be responsible for: (i) the cost of two (2) “tombstone” advertisements to be placed in appropriate daily or weekly periodicals of the Representative’s choice (i.e., The Wall Street Journal and The New York Times); and (ii) the cost of leather bound volumes of the Offering documents and Offering commemorative lucite (or other reasonable form) memorabilia, both to be supplied to the Representative, in such quantities as Representative may reasonably request.
(fd) It is understood, however, that except as provided in this Section 56, and Sections 78, 8 9 and 11(d) hereof, the Underwriters will pay all of their own costs and expenses. Notwithstanding anything to the contrary in this Section 56, in the event that this Agreement is terminated pursuant to Section 11(b) hereof, or subsequent to a Material Adverse Change, (i) the Company will pay, less any advances the amount of the Advances previously paid (the “Advances”)paid, all outAccountable Out-of-pocket expenses of the Underwriters Pocket Expenses (including but not limited to fees and disbursements of Underwriters’ Counsel and reasonable and accountable travel) incurred in connection herewith which shall be limited to expenses which are actually incurred as allowed under FINRA Rule 5110 and in any event, the aggregate amount of such expenses to be reimbursed by the Company shall not exceed $100,000250,000, including the Advances, and (ii) to the extent that the Underwriters’ Accountable Out-of-Pocket Expenses are less than the Advances, the Underwriters will return to the Company that portion of the Advances not offset by actual expenses.
Appears in 2 contracts
Samples: Underwriting Agreement (Linkers Industries LTD), Underwriting Agreement (Linkers Industries LTD)
Consideration; Payment of Expenses. (a) In consideration of the services to be provided for hereunder, the Company shall pay to the Underwriters or their respective designees their pro rata portion (based on the Securities purchased) of the following compensation with respect to the Securities which they are offering:
(i) A cash fee payable at Closing equal to An underwriting discount of seven and one-half percent (77.50%) of the aggregate gross proceeds raised in the OfferingOffering (for the avoidance of doubt, excluding any proceeds from the exercise of warrants); and
(ii) The Representative’s Warrants.
(b) The Additionally, and subject to consummation of an Offering which will include an actual investment of at least $6,000,000, the Company hereby grants the Representative the right of first refusal for a period beginning on date of twelve commencement of sales of the Offering through the one (121) months from the Effective Date year anniversary thereof, to act as lead managing underwriter and book runner or minimally as a co-lead manager and co-book runner and/or co-lead placement agent with at least 50.0% of the economics; or, in the case of a three-handed deal, 33.0% of the economicseconomies, for any and all future public equity, equity-linked or debt (excluding commercial bank debtdebt and credit facility) offerings undertaken by the Company or any subsidiaries of Subsidiaries, in each case, in the CompanyUnited States, provided that the Company shall have the right to add a reputable top-tier firm to act as a joint book runner together with the Representative in any such offering. The Company shall provide written notice to the Representative with terms of such offering and if such Representative fails to accept in writing any such proposal for such public or private sale within 15 five (5) business days after receipt of a such written notice from the Company containing such proposalnotice, then such Representative will have no claim or right with respect to any such sale contained in any such noticeoffering. The above provision shall not be applicable to a financing solicited from a person or entity which is a holder of the Company’s debt or equity securities as of the date hereof or an issuer-directed offering that is not facilitated through or using the services of an investment bank or similar financial advisor.
(c) [Intentionally omitted]
(d) The Representative reserves the right to reduce any item of compensation or adjust the terms thereof as specified herein in the event that a determination shall be made by FINRA to the effect that the Underwriters’ aggregate compensation is in excess of FINRA Rules or that the terms thereof require adjustment.
(de) Whether Subject to the conditions set forth at the proviso below, whether or not the transactions contemplated by this Agreement, the Registration Statement and the Prospectus are consummated or this Agreement is terminated, the Company hereby agrees to pay all costs and expenses incident to the performance of its obligations hereunder (provided any expenses exceeding $10,000 shall be subject to the Company’s prior written approval)this Offering, including the following ($35,000 of which has previously been paid by the Company):following:
(i) all expenses in connection with the preparation, printing, formatting for XXXXX and filing of the Registration Statement, any Preliminary Prospectus and the Prospectus and any and all amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers;
(ii) all fees and expenses in connection with filings with FINRA’s Public Offering System;
(iii) all fees and expenses in connection with filing of the Registration Statement and Prospectus with the Commission;
(iv) all fees, disbursements and expenses of the Company’s counsel counsel, accountants and accountants other agents and representatives in connection with the registration of the Securities under the Securities Act and the Offering;
(viv) all fees and expenses in connection with listing the ADSs on the NASDAQ Capital Market and Underwriters’ reasonable expenses in connection with the qualifications of the Securities for offering and sale under state or foreign securities or blue sky laws, including up to $10,000 for the fees of Underwriters’ Counsel in connection with such qualification and in connection with any blue sky survey undertaken by such counsel;
(v) [reserved];
(vi) all fees expenses, including travel and expenses in connection with listing the Securities on the Nasdaq Capital Market;
(vii) all reasonable travel expenses of the Company’s officers and employees and any other expense of the Company lodging expenses, incurred in connection with attending or hosting meetings with prospective purchasers of the Securities (“Road Show Expenses”);
(viiivii) any stock transfer taxes or other taxes incurred in connection with this Agreement or the Offering;
(ixviii) the costs associated with book building, prospectus tracking and compliance software and the cost of preparing certificates representing the Securities;
(xix) the cost and charges of any transfer agent or registrar for the Securities;
(xix) any reasonable cost and expenses in conducting satisfactory due diligence investigation and analysis background checks of the Company’s officers and directors;
(xii) any reasonable expenses and fees incurred directors by Underwriters’ Counsela background search firm acceptable to the Representative in an amount of up to $600 per officer or director; and
(xiiixi) all other costs costs, fees and expenses incident to the performance of the Company obligations hereunder which are not otherwise specifically provided for in this Section 5.
; provided, however, (ei) In addition to the that all such costs and expenses set forth in pursuant to this Section 5(d) above5(e), which are incurred by the Underwriters and to be reimbursed by the Company, including the Underwriters’ Road Show Expenses, shall not exceed $150,000 (including the reasonable fees, disbursements and other charges of Underwriters’ Counsel), which amount includes a $25,000 advance against anticipated expenses previously paid by the Company to the Representative (which will be responsible for: (ireimbursed to the extent not offset by actual expenses) the cost of two (2) “tombstone” advertisements to be placed in appropriate daily or weekly periodicals of the Representative’s choice (i.e., The Wall Street Journal and The New York Times); and (ii) all expenses in excess of $250 must be pre-approved by the cost of leather bound volumes of the Offering documents and Offering commemorative lucite (or other reasonable form) memorabilia, both to be supplied to the Representative, in such quantities as Representative may reasonably requestCompany.
(f) It is understood, however, that except as provided in this Section 5, and Sections 7, 8 and 11(d) hereof, the Underwriters will pay all of their own costs and expenses. Notwithstanding anything to the contrary in this Section 5, in the event that this Agreement is terminated pursuant to Section 11(b) hereof, or subsequent to a Material Adverse Change, the Company will pay, less any advances previously paid (the “Advances”), all reasonable accountable out-of-pocket expenses of the Underwriters (including but not limited to fees and disbursements of Underwriters’ Counsel and reasonable travel) incurred in connection herewith which shall be limited to expenses which are actually incurred as allowed under FINRA Rule 5110 and 5110, provided, however, that the aggregate maximum amount of such costs and expenses to be reimbursed by Company to the Company Underwriters pursuant to this Section 5(f) shall not exceed $100,00050,000 (including the reasonable fees, disbursements and other charges of Underwriters’ Counsel), which amount includes the $25,000 advance against anticipated expenses previously paid by the Company to the Representative. If the Underwriters’ expenses are less than respective Advances previously paid to the Representative, the Representative shall return any portion of the advance not used for actual expenses.
(g) Each Underwriter severally and not jointly covenants to the Company not to engage in any form of solicitation, advertising or other action that would constitute an offer or a sale under the Israeli Securities Law and the regulations promulgated thereunder that would require the Company to publish a prospectus in the State of Israel under the laws of the State of Israel.
Appears in 2 contracts
Samples: Underwriting Agreement (Safe-T Group Ltd.), Underwriting Agreement (Safe-T Group Ltd.)
Consideration; Payment of Expenses. (a) In consideration of the services to be provided for hereunder, the Company shall pay to the Underwriters or their respective designees their pro rata portion (based on the Securities purchased) of the following aggregate compensation with respect to the Offered Securities which they are offering:offering plus any other funds remitted by the Company to pay costs and expenses that are incurred by the Underwriters (including Underwriters’ counsel’s fees and expenses) (“Additional Advanced Amounts”).
(i) A cash fee payable at Closing An underwriting discount equal to seven percent (7%) of the aggregate gross proceeds raised in the Offering; and;
(ii) The Representative’s Underwriters’ Warrants.; and
(biii) The Additionally, if the Closing occurs, the Company grants the Representative the right of first refusal for a period of twelve eighteen (1218) months from the Effective Date date of commencement of sales pursuant to the Prospectus to act as lead sole managing underwriter and sole book runner or minimally as a co-lead manager and co-book runner and/or co-lead placement agent with at least 50.0% of the economics; or, in the case of a three-handed deal, 33.0% of the economics, for any and all future public or private equity, equity-linked or debt (excluding commercial bank debt) offerings undertaken by the Company Company, or any subsidiaries successor to or any subsidiary of the Company. The Company shall provide written notice to the Representative with the terms of such offering and if the Representative fails to accept in writing any such proposal for such public or private sale within 15 ten (10) business days after receipt of a such written notice from the Company containing such proposalnotice, then the Representative will have no claim or right with respect to any such sale contained in any such noticeoffering(s).
(civ) The Representative reserves the right to reduce any item of compensation or adjust the terms thereof as specified herein in the event that a determination shall be made by FINRA to the effect that the Underwriters’ aggregate compensation is in excess of FINRA Rules rules or that the terms thereof require adjustment.
(dv) Whether or not the transactions contemplated by this Agreement, the Registration Statement and the Prospectus are consummated or this Agreement is terminated, the Company hereby agrees to pay all costs and expenses incident to the performance of its obligations hereunder (provided any expenses exceeding $10,000 shall be subject to the Company’s prior written approval), including the following ($35,000 of which has previously been paid by the Company):following:
(i1) all expenses in connection with the preparation, printing, formatting for XXXXX EXXXX and filing of the Registration Statement, any Preliminary Prospectus and the Prospectus and any and all exhibits, amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers;
(ii2) all filing fees and expenses in connection with filings with FINRA’s Public Offering System;
(iii) all fees and expenses in connection with filing of the Registration Statement and Prospectus with the Commission;
(iv3) all fees, disbursements and expenses of the Company’s counsel counsel, accountants and accountants other agents and representatives in connection with the registration of the Securities under the Securities Act and the Offering;
(v4) all reasonable expenses in connection with the qualifications of the Securities for offering and sale under state or foreign securities or blue sky lawslaws (including, including up to $10,000 for without limitation, all filing and registration fees, and the fees and disbursements of Underwriters’ Counsel in connection with such qualification and in connection with any blue sky survey undertaken by such counsel;
(vi5) all fees and expenses in connection with listing the Securities on the Nasdaq Capital Marketa national securities exchange;
(vii6) all reasonable expenses, including travel expenses and lodging expenses, of the Company’s officers officers, directors and employees and any other expense of the Company incurred in connection with attending or hosting meetings with prospective purchasers of the Securities (“Road Show Expenses”)and any fees and expenses associated with the i-Deal system and NetRoadshow;
(viii7) any stock transfer taxes or other taxes incurred in connection with this Agreement or the Offeringoffering, including any stock transfer taxes payable upon the transfer of securities to the Underwriters;
(ix) 8) the cost of preparing costs associated with preparing, printing and delivering certificates representing the Securities;
(x9) the cost and charges of any transfer agent or registrar for the Securities;
(xi10) any reasonable cost and expenses in conducting satisfactory due diligence investigation and analysis of subject to the Company’s officers and directors;
following proviso, other costs (xii) any reasonable expenses and fees incurred by including Underwriters’ Counsel; and
(xiiicounsel’s fees and expenses) all other costs and expenses incident to the performance of the Company obligations hereunder which Offering that are not otherwise specifically provided for in this Section 5.4(k);
(e11) In addition costs relating to the costs and expenses set forth in Section 5(d) above, the Company will be responsible for: (i) the cost of two (2) “tombstone” advertisements to be placed in appropriate daily or weekly periodicals background checks of the RepresentativeCompany’s choice (i.e., The Wall Street Journal officers and The New York Times)directors; and (ii) the cost of leather bound volumes of the Offering documents and Offering commemorative lucite (or other reasonable form) memorabilia, both to be supplied to the Representative, in such quantities as Representative may reasonably request.
(f) It is understoodprovided, however, that except as provided in this Section 5, all such costs and Sections 7, 8 expenses (including Underwriters’ counsel’s fees and 11(dexpenses) hereof, that are incurred by the Underwriters will pay all of their own costs and expenses. Notwithstanding anything to the contrary in this Section 5, in the event that this Agreement is terminated pursuant to Section 11(b) hereof, or subsequent to a Material Adverse Change, the Company will pay, less any advances previously paid (the “Advances”), all out-of-pocket expenses of the Underwriters (including but not limited to fees and disbursements of Underwriters’ Counsel and reasonable travel) incurred in connection herewith which shall be limited to expenses which are actually incurred as allowed under FINRA Rule 5110 and the aggregate amount of such expenses to be reimbursed by the Company shall not exceed $100,000110,000 in the aggregate.
Appears in 2 contracts
Samples: Underwriting Agreement (SurgePays, Inc.), Underwriting Agreement (SurgePays, Inc.)
Consideration; Payment of Expenses. (a) In consideration of the services to be provided for hereunder, the Company shall pay to the Underwriters or their respective designees their pro rata portion (based on the Offered Securities purchased) of the following aggregate compensation with respect to the Offered Securities which they are offering:offering plus any other funds remitted by the Company to pay costs and expenses that are incurred by the Underwriters (including Underwriters’ counsel’s fees and expenses) (“Additional Advanced Amounts”).
(i) A cash fee payable at Closing An underwriting discount equal to seven eight percent (78%) of the aggregate gross proceeds raised in the Offering; and;
(ii) The Representative’s Underwriters’ Warrants.; and
(biii) The Additionally, if the Closing occurs, the Company grants the Representative the right of first refusal for a period of twelve (12) 18 months from the Effective Date date of commencement of sales pursuant to the Prospectus to act as lead sole managing underwriter and sole book runner or minimally as a co-lead manager and co-book runner and/or co-lead placement agent with at least 50.0% of the economics; or, in the case of a three-handed deal, 33.0% of the economics, for any and all future public or private equity, equity-linked or debt (excluding commercial bank debt) offerings undertaken by the Company Company, or any subsidiaries successor to or any subsidiary of the Company. The Company shall provide written notice to the Representative with the terms of such offering and if the Representative fails to accept in writing any such proposal for such public or private sale within 15 ten business days after receipt of a such written notice from the Company containing such proposalnotice, then the Representative will have no claim or right with respect to any such sale contained in any such noticeoffering(s).
(civ) The Representative reserves the right to reduce any item of compensation or adjust the terms thereof as specified herein in the event that a determination shall be made by FINRA to the effect that the Underwriters’ aggregate compensation is in excess of FINRA Rules rules or that the terms thereof require adjustment.
(dv) Whether or not the transactions contemplated by this Agreement, the Registration Statement and the Prospectus are consummated or this Agreement is terminated, the Company hereby agrees to pay all costs and expenses incident to the performance of its obligations hereunder (provided any expenses exceeding $10,000 shall be subject to the Company’s prior written approval), including the following ($35,000 of which has previously been paid by the Company):following:
(i1) all expenses in connection with the preparation, printing, formatting for XXXXX and filing of the Registration Statement, any Preliminary Prospectus and the Prospectus and any and all exhibits, amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers;
(ii2) all filing fees and expenses in connection with filings with FINRA’s Public Offering System;
(iii) all fees and expenses in connection with filing of the Registration Statement and Prospectus with the Commission;
(iv3) all fees, disbursements and expenses of the Company’s counsel counsel, accountants and accountants other agents and representatives in connection with the registration of the Offered Securities under the Securities Act and the Offering;
(v4) all reasonable expenses in connection with the qualifications of the Offered Securities for offering and sale under state or foreign securities or blue sky lawslaws (including, including up to $10,000 for without limitation, all filing and registration fees, and the fees and disbursements of Underwriters’ Counsel in connection with such qualification and in connection with any blue sky survey undertaken by such counsel;
(vi5) all fees and expenses in connection with listing the Offered Securities on the Nasdaq Capital Marketa national securities exchange;
(vii6) all reasonable expenses, including travel expenses and lodging expenses, of the Company’s officers officers, directors and employees and any other expense of the Company incurred in connection with attending or hosting meetings with prospective purchasers of the Offered Securities (“Road Show Expenses”)and any fees and expenses associated with the i-Deal system and NetRoadshow;
(viii7) any stock transfer taxes or other taxes incurred in connection with this Agreement or the Offeringoffering, including any stock transfer taxes payable upon the transfer of securities to the Underwriters;
(ix) 8) the cost of preparing costs associated with preparing, printing and delivering certificates representing the Offered Securities;
(x9) the cost and charges of any transfer agent or registrar for the Offered Securities;
(xi10) any reasonable cost and expenses in conducting satisfactory due diligence investigation and analysis of subject to the Company’s officers and directors;
following proviso, other costs (xii) any reasonable expenses and fees incurred by including Underwriters’ Counsel; and
(xiiicounsel’s fees and expenses) all other costs and expenses incident to the performance of the Company obligations hereunder which Offering that are not otherwise specifically provided for in this Section 5.4(k);
(e11) In addition costs relating to the costs and expenses set forth in Section 5(d) above, the Company will be responsible for: (i) the cost of two (2) “tombstone” advertisements to be placed in appropriate daily or weekly periodicals background checks of the RepresentativeCompany’s choice (i.e., The Wall Street Journal officers and The New York Times)directors; and (ii) the cost of leather bound volumes of the Offering documents and Offering commemorative lucite (or other reasonable form) memorabilia, both to be supplied to the Representative, in such quantities as Representative may reasonably request.
(f) It is understoodprovided, however, that except as provided in this Section 5, all such costs and Sections 7, 8 expenses (including Underwriters’ counsel’s fees and 11(dexpenses) hereof, that are incurred by the Underwriters will pay all of their own costs and expenses. Notwithstanding anything to the contrary in this Section 5, in the event that this Agreement is terminated pursuant to Section 11(b) hereof, or subsequent to a Material Adverse Change, the Company will pay, less any advances previously paid (the “Advances”), all out-of-pocket expenses of the Underwriters (including but not limited to fees and disbursements of Underwriters’ Counsel and reasonable travel) incurred in connection herewith which shall be limited to expenses which are actually incurred as allowed under FINRA Rule 5110 and the aggregate amount of such expenses to be reimbursed by the Company shall not exceed $100,000110,000 in the aggregate.
Appears in 1 contract
Consideration; Payment of Expenses. (ai) In consideration As compensation for services rendered, and provided that any of the services Offered Securities are sold to be provided for hereunderthe Underwriters in the Offering, at the closing of the Offering, the Company shall pay to the Underwriters or their respective designees their pro rata portion (based on the Offered Securities purchasedpurchased in the Offering) of the following compensation with respect to the Securities which they are offering:
(i) A cash fee payable at Closing an underwriting discount equal to seven percent (7%) of the aggregate gross proceeds raised in the Offering; and.
(ii) The Representative’s Warrants.
(b) The Additionally, if the Closing occurs, the Company grants the Representative the right of first refusal for a period of twelve (12) months from the Effective Date date of commencement of sales pursuant to the Prospectus to act as lead sole managing underwriter and sole book runner or minimally as a co-lead manager and co-book runner and/or co-lead placement agent with at least 50.0% of the economics; or, in the case of a three-handed deal, 33.0% of the economics, for any and all future public or private equity, equity-linked or debt (excluding commercial bank debt) offerings undertaken by for which the Company retains the service of an underwriter, agent, advisor, finder, or any subsidiaries other person or entity in connection with such offering during such twelve (12) month period of the Company, or any successor to or any subsidiary of the Company. The Company shall not offer to retain any entity or person in connection with any such offering on terms more favorable than terms on which it offers to retain the Representative. Such offer shall be made in writing in order to be effective. The Company shall provide written notice to the Representative with the terms of such offering and if the Representative fails to accept in writing any such proposal for such public or private sale within 15 ten (10) business days after receipt of a such written notice from the Company containing such proposalnotice, then the Representative will have no claim or right with respect to any such sale contained in any such noticeoffering(s).
(ciii) The Representative reserves the right to reduce any item of compensation or adjust the terms thereof as specified herein in the event that a determination shall be made by FINRA to the effect that the Underwriters’ aggregate compensation is in excess of FINRA Rules rules or that the terms thereof require adjustment.
(div) Whether or not the transactions contemplated by this Agreement, the Registration Statement and the Prospectus are consummated or this Agreement is terminated, the Company hereby agrees to pay all costs and expenses incident to the performance of its obligations hereunder (provided any expenses exceeding $10,000 shall be subject to the Company’s prior written approval)hereunder, including the following ($35,000 of which has previously been paid by the Company):following:
(i1) all expenses in connection with the preparation, printing, formatting for XXXXX EXXXX and filing of the Registration Statement, any Preliminary Prospectus and the Prospectus and any and all exhibits, amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers;
(ii2) all filing fees and expenses in connection with filings with FINRA’s Public Offering System;
(iii) all fees and expenses in connection with filing of the Registration Statement and Prospectus with the Commission;
(iv3) all fees, disbursements and expenses of the Company’s counsel counsel, accountants and accountants other agents and representatives in connection with the registration of the Securities under the Securities Act and the Offering;
(v4) all reasonable expenses in connection with the qualifications of the Securities for offering and sale under state or foreign securities or blue sky lawslaws (including, including up to $10,000 for the fees of Underwriters’ Counsel in connection with such qualification without limitation, all filing and in connection with any blue sky survey undertaken by such counselregistration fees);
(vi5) all fees and expenses in connection with listing the Securities on the Nasdaq Capital Marketa national securities exchange;
(vii6) all reasonable expenses, including travel expenses and lodging expenses, of the Company’s officers officers, directors and employees and any other expense of the Company incurred in connection with attending or hosting meetings with prospective purchasers of the Securities (“Road Show Expenses”)and any fees and expenses associated with the i-Deal system and NetRoadshow;
(viii7) any stock transfer taxes or other taxes incurred in connection with this Agreement or the Offeringoffering, including any stock transfer taxes payable upon the transfer of securities to the Underwriters;
(ix) 8) the cost of preparing costs associated with preparing, printing and delivering certificates representing the Securities;
(x9) the cost and charges of any transfer agent or registrar for the Securities;
(xi) any reasonable cost and expenses in conducting satisfactory due diligence investigation and analysis of the Company’s officers and directors;
(xii) any reasonable expenses and fees incurred by Underwriters’ Counsel; and
(xiii10) all other costs subject to the following proviso and Section 4(l), the actual and reasonable out-of-pocket expenses incident to incurred by the Underwriters in connection with the performance of their obligations under this Agreement (including the Company obligations hereunder which are not otherwise specifically provided for in this Section 5.
(e) In addition to the costs reasonable legal fees and expenses set forth of the Underwriters’ legal counsel incurred in connection with the Offering contemplated hereby and including any fees or expenses incurred in accordance with Section 5(d4(k)(iv)(6) above) and as allowed under FINRA Rule 5110, shall not exceed an aggregate of $100,000 (the Company will be responsible for: (i) the cost of two (2) “tombstone” advertisements to be placed in appropriate daily or weekly periodicals of the Representative’s choice (i.e., The Wall Street Journal and The New York TimesUnderwriters’ Reimbursement”); and (ii) the cost of leather bound volumes of the Offering documents and Offering commemorative lucite (or other reasonable form) memorabilia, both to be supplied to the Representative, in such quantities as Representative may reasonably request.
(f) It is understoodprovided, however, that that, except as to the extent otherwise provided in this Section 5, and Sections 7, 8 and 11(d4(k) or Section 4(l) hereof, the Underwriters will pay all of their own costs and expenses. Notwithstanding anything to , including the contrary in this Section 5, in the event that this Agreement is terminated pursuant to Section 11(b) hereof, or subsequent to a Material Adverse Change, the Company will pay, less any advances previously paid (the “Advances”), all out-of-pocket expenses of the Underwriters (including but not limited to fees and disbursements of counsel for the Underwriters’ Counsel and reasonable travel) incurred in connection herewith which shall be limited to expenses which are actually incurred as allowed under FINRA Rule 5110 and the aggregate amount of such expenses to be reimbursed by the Company shall not exceed $100,000.
Appears in 1 contract
Samples: Underwriting Agreement (Esports Entertainment Group, Inc.)
Consideration; Payment of Expenses. (a) In consideration of the services to be provided for hereunder, the Company shall pay to the Underwriters or their respective designees their pro rata portion (based on the Securities purchased) of the following compensation with respect to the Securities which they are offering:
(i) A cash fee payable at Closing An underwriting discount equal to seven percent (7%) of the aggregate gross proceeds raised in the Offering; and
(ii) The Representative’s Warrants.
(biii) The Additionally, the Company grants the Representative the right of first refusal for a period of twelve (12) months from the Effective Date effective date of the Registration Statement to act as lead managing underwriter and sole book runner (or minimally as a co-lead manager and co-book runner and/or co-lead placement agent with at least 50.080% of the economics; or, in the case of a three-handed deal, 33.0% of the economics, ) for any and all future public or private equity, equity-linked or debt offerings (excluding commercial bank debt) offerings undertaken by the Company Company, its Subsidiary(ies), or any subsidiaries of the Companysuccessor thereto. The Company shall provide written notice to the Representative with the terms of such offering and if the Representative fails to accept in writing any such proposal for such public or private sale within 15 twenty (20) days after receipt of a such written notice from the Company containing such proposalnotice, then the Representative will have no claim or right with respect to any such sale contained in any such noticeoffering(s).
(civ) The Representative reserves the right to reduce any item of compensation or adjust the terms thereof as specified herein in the event that a determination shall be made by FINRA to the effect that the Underwriters’ aggregate compensation is in excess of FINRA Rules rules or that the terms thereof require adjustment.
(dv) Whether or not the transactions contemplated by this Agreement, the Registration Statement and the Prospectus are consummated or this Agreement is terminated, the Company hereby agrees to pay all costs and expenses incident to the performance of its obligations hereunder (provided any expenses exceeding $10,000 shall be subject to the Company’s prior written approval), including the following ($35,000 of which has previously been paid by the Company):following:
(i1) all expenses in connection with the preparation, printing, formatting for XXXXX and EDXXX xnd filing of the Registration Statement, any Preliminary Prospectus and the Prospectus and any and all exhibits, amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers;
(ii2) all filing fees and expenses in connection with filings with FINRA’s Public Offering System;
(iii) all fees and expenses in connection with filing of the Registration Statement and Prospectus with the Commission;
(iv3) all fees, disbursements and expenses of the Company’s counsel counsel, accountants and accountants other agents and representatives in connection with the registration of the Securities under the Securities Act and the Offering;
(v4) all reasonable expenses in connection with the qualifications of the Securities for offering and sale under state or foreign securities or blue sky lawslaws (including, including up to $10,000 for without limitation, all filing and registration fees, and the fees and disbursements of Underwriters’ Counsel in connection with such qualification and in connection with any blue sky survey undertaken by such counsel;
(vi5) all fees and expenses in connection with listing the Securities on the Nasdaq Capital Marketa national securities exchange;
(vii6) all reasonable expenses, including travel expenses and lodging expenses, of the Company’s officers officers, directors and employees and any other expense of the Company incurred in connection with attending or hosting meetings with prospective purchasers of the Securities (“Road Show Expenses”)and any fees and expenses associated with the i-Deal system and NetRoadshow;
(viii7) any stock transfer taxes or other taxes incurred in connection with this Agreement or the Offeringoffering, including any stock transfer taxes payable upon the transfer of securities to the Underwriters;
(ix) 8) the cost of preparing costs associated with preparing, printing and delivering certificates representing the Securities;
(x9) the cost and charges of any transfer agent or registrar for the Securities;
(xi10) any reasonable cost and expenses in conducting satisfactory due diligence investigation and analysis of (subject to the Company’s officers and directors;
following proviso, other costs (xii) any reasonable expenses and fees incurred by including Underwriters’ Counsel; and
(xiiicounsel’s fees and expenses) all other costs and expenses incident to the performance of the Company obligations hereunder which Offering that are not otherwise specifically provided for in this Section 5.4(k);
(e11) In addition costs relating to the costs and expenses set forth in Section 5(d) above, the Company will be responsible for: (i) the cost of two (2) “tombstone” advertisements to be placed in appropriate daily or weekly periodicals background checks of the RepresentativeCompany’s choice (i.e.officers and directors, The Wall Street Journal and The New York Times)up to $15,000 in the aggregate; and (ii) the cost of leather bound volumes of the Offering documents and Offering commemorative lucite (or other reasonable form) memorabilia, both to be supplied to the Representative, in such quantities as Representative may reasonably request.
(f) It is understoodprovided, however, that except as provided in this Section 5, all such costs and Sections 7, 8 expenses (including Underwriters’ counsel’s fees and 11(dexpenses) hereof, that are incurred by the Underwriters will pay all of their own costs and expenses. Notwithstanding anything to the contrary in this Section 5, in the event that this Agreement is terminated pursuant to Section 11(b) hereof, or subsequent to a Material Adverse Change, the Company will pay, less any advances previously paid (the “Advances”), all out-of-pocket expenses of the Underwriters (including but not limited to fees and disbursements of Underwriters’ Counsel and reasonable travel) incurred in connection herewith which shall be limited to expenses which are actually incurred as allowed under FINRA Rule 5110 and the aggregate amount of such expenses to be reimbursed by the Company shall not exceed $100,000125,000 in the aggregate.
Appears in 1 contract
Consideration; Payment of Expenses. (a) In consideration of the services to be provided for hereunder, the Company shall pay to the Underwriters Underwriter or their respective designees their pro rata portion (based on the Securities purchased) of the following compensation with respect to the Securities which they are offering:
(i) A cash fee payable at Closing an underwriting discount equal to seven percent (7%) of the aggregate gross proceeds raised in the Offering;
(ii) a non-accountable expense allowance of one and half percent (1.5%) of the gross proceeds of the Offering;
(iii) an accountable expense allowance of up to $150,000, of which $100,000 has already been paid to the Underwriter as an advance against accountable expenses, any portion of which not actually incurred in compliance with FINRA Rule 5110 (f)(2)(c) by the Underwriter will be reimbursed to the Company ; and
(iiiv) The Representativethe Company shall grant to the Underwriter or its designated affiliates share purchase warrants (the “Underwriter’s Warrants”) covering a number of shares equal to nine percent (9%) of the total number of Firm Shares.
(b) The Underwriter’s Warrants will be non-exercisable for six (6) months after the Effective Date and will expire three (3) years after the Effective Date. The Underwriter’s Warrants will be exercisable at a price equal to one hundred and twenty-five percent (125%) of the public offering price of the underlying Class A Ordinary Shares in connection with the Offering. The Underwriter’s Warrants shall not be redeemable. The Company grants will register the Representative Class A Ordinary Shares underlying the right Underwriter’s Warrants under the Act and will file all necessary undertakings in connection therewith. The Underwriter’s Warrants shall not be sold during the Offering, or sold, transferred, assigned, pledged, or hypothecated, or be the subject of first refusal any hedging, short sale, derivative, put, or call transaction that would result in the effective economic disposition of the securities by any person for a period of twelve 180 days immediately following the Effective Date, except that they may be transferred to any member participating in the Offering and the officers or partners thereof, if all securities so transferred remain subject to the lock-up restriction for the remainder of the time period. The Underwriter’s Warrants may be exercised as to all or a lesser number of the underlying Class A Ordinary Shares, will provide for cashless exercise and will contain provisions for one demand registration of the sale of the underlying Class A Ordinary Share at the Company’s expense, an additional demand registration at the Underwriter’s Warrants holder’s expense, each such demand registration for a period of three (123) months from years after the Effective Date to act as lead managing underwriter and book runner or minimally as unlimited “piggyback” registration rights for a co-lead manager and co-book runner and/or co-lead placement agent with period of three (3) years after the Effective Date at least 50.0% of the economics; or, Company’s expense. The Underwriter’s Warrants shall further provide for adjustment in the case of a three-handed deal, 33.0% of the economics, for any number and all future equity, equity-linked or debt (excluding commercial bank debt) offerings undertaken by the Company or any subsidiaries of the Company. The Company shall provide written notice to Representative with terms price of such offering warrants (and if Representative fails the Class A Ordinary Share underlying such Warrants) in the event of recapitalization, merger or other structural transaction to accept in writing any such proposal for such public or private sale within 15 days after receipt of a written notice from the Company containing such proposal, then Representative will have no claim or right with respect to any such sale contained in any such noticeprevent dilution.
(c) The Representative Underwriter reserves the right to reduce any item of compensation or adjust the terms thereof as specified herein in the event that a determination shall be made by FINRA to the effect that the UnderwritersUnderwriter’ aggregate compensation is in excess of FINRA Rules or that the terms thereof require adjustment.
(d) Whether or not the transactions contemplated by this Agreement, the Registration Statement and the Prospectus are consummated or this Agreement is terminated, the Company hereby agrees to pay all the following costs and expenses incident to the performance of its obligations hereunder (provided any expenses exceeding $10,000 shall be subject to the Company’s prior written approval), including the following ($35,000 of which has previously been paid by the Company):Offering:
(i) all expenses in connection with the preparation, printing, formatting for XXXXX EXXXX and filing of the Registration Statement, any Preliminary Prospectus and the Prospectus and any and all amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters Underwriter and dealers;
(ii) all fees and expenses in connection with filings with FINRA’s Public Offering System;
(iii) all fees and expenses in connection with filing of the Registration Statement and Prospectus with the Commission;
(iv) all fees, disbursements and expenses of the Company’s counsel and accountants in connection with the registration of the Securities under the Securities Act and the Offering;
(viv) all reasonable expenses in connection with the qualifications of the Securities for offering and sale under state or foreign securities or blue sky laws, including up to $10,000 for the fees of Underwriters’ Counsel in connection with such qualification and in connection with any blue sky survey undertaken by such counsel;
(viv) all fees and expenses in connection with listing the Securities on the Nasdaq Capital Marketa national securities exchange;
(viivi) all reasonable travel expenses of the Company’s officers officers, directors and employees and any other expense of the Company incurred in connection with attending or hosting meetings with prospective purchasers of the Securities Securities;
(“Road Show Expenses”)vii) all the road show expenses incurred by the Company;
(viii) any stock transfer taxes or other taxes incurred in connection with this Agreement or the Offering;
(ix) the costs associated with book building, prospectus tracking and compliance software and the cost of preparing certificates representing the Securities;
(x) the cost and charges of any transfer agent or registrar for the Securities;
(xi) any reasonable cost costs and expenses incurred in conducting satisfactory due diligence investigation and analysis background checks of the Company’s officers and directors;directors by a background search firm acceptable to the Underwriter, not to exceed $15,000; and
(xii) any reasonable expenses and fees incurred by Underwriters’ Counsel; and
(xiii) all other costs and expenses incident to the performance of the Company obligations hereunder which are not otherwise specifically provided for in this Section 5.
(e) In addition to the costs and expenses set forth in Section 5(d) above, the Company will be responsible for: (i) the cost of two (2) “tombstone” advertisements to be placed in appropriate daily or weekly periodicals of the Representative’s choice (i.e., The Wall Street Journal and The New York Times); and (ii) the cost of leather associated with bound volumes of the Offering documents and Offering commemorative lucite (or other reasonable form) memorabilia, both to be supplied to the Representative, mementos in such quantities as Representative the Underwriter may reasonably request., not to exceed $2,500;
(fe) It is understood, however, that except as provided in this Section 56, and Sections 78, 8 9 and 11(d) hereof, the Underwriters Underwriter will pay all of their own costs and expenses. Notwithstanding anything to the contrary in this Section 56, in the event that this Agreement is terminated pursuant to Section 11(b) hereof, or subsequent to a Material Adverse Change, the Company will pay, less any advances previously paid which as of the date hereof is $100,000, including $50,000 as an advance to be applied towards the accountable expenses allowance (the “Advances”)) and $50,000 paid upon the filing of the Company’s Registration Statement, all documented out-of-pocket expenses of the Underwriters Underwriter (including but not limited to fees and disbursements of UnderwritersUnderwriter’ Counsel and reasonable and accountable travel) incurred in connection herewith which shall be limited to expenses which are actually incurred as allowed under FINRA Rule 5110 and in any event, the aggregate amount of such expenses to be reimbursed by the Company shall not exceed $100,000150,000, including the Advances. To the extent that the Underwriter’ out-of-pocket expenses are less than the Advances, the Underwriter will return to the Company that portion of the Advances not offset by actual expenses.
Appears in 1 contract
Samples: Underwriting Agreement (Tian Ruixiang Holdings LTD)
Consideration; Payment of Expenses. (a) In consideration of the services to be provided for hereunder, the Company shall pay to the Underwriters or their respective designees their pro rata portion (based on the Public Securities purchased) of the following aggregate compensation with respect to the Public Securities which they are offering:
(i1) A cash fee payable at Closing An underwriting discount equal to seven percent (7%) of the aggregate gross proceeds raised in the Offeringoffering of Public Securities; andprovided, however, that no discount or commission will be payable by the Company in respect of Firm Shares issued in satisfaction of the Director Note and/or Investor Note (each as defined in the Registration Statement);
(ii2) The Representative’s Warrants.;
(b3) The Additionally, if the Closing occurs, the Company grants the Representative the right of first refusal for a period of twelve eighteen (1218) months from the Effective Date closing of the Offering to act as lead sole managing underwriter and sole book runner or minimally as a co-lead manager and co-book runner and/or co-lead placement agent with at least 50.0% of the economics; or, in the case of a three-handed deal, 33.0% of the economics, for any and all future public or private equity, equity-linked or debt (excluding commercial bank debt) offerings undertaken by the Company Company, or any subsidiaries of successor to the Company. The Company shall provide written notice to the Representative with the terms of such offering and if the Representative fails to accept in writing any such proposal for such public or private sale within 15 ten (10) business days after receipt of a such written notice from the Company containing such proposalnotice, then the Representative will have no claim or right with respect to any such sale contained in any such notice.offering(s); and
(c4) The Subject to FINRA Rule 5110(g)(5)(B), the Representative reserves the right shall be entitled to reduce any item of compensation or adjust the terms thereof as specified herein under Section 4(m)(1) hereof, calculated in the event manner set forth therein, with respect to any public or private offering of securities or other financing or capital-raising transaction of any kind (“Tail Financing”) to the extent that a determination such financing or capital is provided to the Company by investors whom the Representative had contacted during the Engagement Period (excluding any financing or capital provided to the Company by investors whom the Company introduced to the Representative, as listed on Schedule B, attached hereto) or introduced to the Company during the Engagement Period, if such Tail Financing is consummated at any time within the twelve (12)-month period following the expiration or termination of that certain engagement agreement by and between the Company and the Representative, dated as of December 8, 2023 (“Engagement Agreement”). If the Tail Financing is not an underwritten offering, the amount of the underwriting discount specified in Section 4(m)(1) shall be made by FINRA to the effect that the Underwriters’ aggregate compensation is in excess of FINRA Rules or that the terms thereof require adjustment.
(d) Whether or not the transactions contemplated by this Agreement, the Registration Statement and the Prospectus are consummated or this Agreement is terminated, the Company hereby agrees to pay all costs and expenses incident to the performance of its obligations hereunder (provided any expenses exceeding $10,000 shall be subject to the Company’s prior written approval), including the following ($35,000 of which has previously been paid by the Company):
Company to the Representative as a cash fee from the proceeds of the Closing. “Engagement Period” shall mean the period beginning on December 8, 2023, and ending on the earliest of (i) all expenses in connection with the preparationDecember 8, printing2024, formatting for XXXXX and filing of the Registration Statement, any Preliminary Prospectus and the Prospectus and any and all amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers;
(ii) all fees and expenses in connection with filings with FINRA’s Public Offering System;
(iii) all fees and expenses in connection with filing of the Registration Statement and Prospectus with the Commission;
(iv) all fees, disbursements and expenses of the Company’s counsel and accountants in connection with the registration of the Securities under the Securities Act and the Offering;
(v) all reasonable expenses in connection with the qualifications of the Securities for offering and sale under state or foreign securities or blue sky laws, including up to $10,000 for the fees of Underwriters’ Counsel in connection with such qualification and in connection with any blue sky survey undertaken by such counsel;
(vi) all fees and expenses in connection with listing the Securities on the Nasdaq Capital Market;
(vii) all reasonable travel expenses of the Company’s officers and employees and any other expense of the Company incurred in connection with attending or hosting meetings with prospective purchasers of the Securities (“Road Show Expenses”);
(viii) any stock transfer taxes incurred in connection with this Agreement or the Offering;
(ix) the cost of preparing certificates representing the Securities;
(x) the cost and charges of any transfer agent or registrar for the Securities;
(xi) any reasonable cost and expenses in conducting satisfactory due diligence investigation and analysis of the Company’s officers and directors;
(xii) any reasonable expenses and fees incurred by Underwriters’ Counsel; and
(xiii) all other costs and expenses incident to the performance of the Company obligations hereunder which are not otherwise specifically provided for in this Section 5.
(e) In addition to the costs and expenses set forth in Section 5(d) above, the Company will be responsible for: (i) the cost of two (2) “tombstone” advertisements to be placed in appropriate daily or weekly periodicals of the Representative’s choice (i.e., The Wall Street Journal and The New York Times); and (ii) the cost of leather bound volumes of date that the Offering documents and Offering commemorative lucite (or other reasonable form) memorabilia, both to be supplied Company terminates the Engagement Agreement pursuant to the Representative, in such quantities as Representative may reasonably requestterms therein.
(f) It is understood, however, that except as provided in this Section 5, and Sections 7, 8 and 11(d) hereof, the Underwriters will pay all of their own costs and expenses. Notwithstanding anything to the contrary in this Section 5, in the event that this Agreement is terminated pursuant to Section 11(b) hereof, or subsequent to a Material Adverse Change, the Company will pay, less any advances previously paid (the “Advances”), all out-of-pocket expenses of the Underwriters (including but not limited to fees and disbursements of Underwriters’ Counsel and reasonable travel) incurred in connection herewith which shall be limited to expenses which are actually incurred as allowed under FINRA Rule 5110 and the aggregate amount of such expenses to be reimbursed by the Company shall not exceed $100,000.
Appears in 1 contract
Samples: Underwriting Agreement (Chromocell Therapeutics Corp)
Consideration; Payment of Expenses. (a) In consideration of the services to be provided for hereunder, the Company shall pay to the Underwriters Underwriters, or their respective designees designees, their pro rata portion (based on the Securities purchased) of the following compensation with respect to the Securities Shares which they are offering:
(i) A cash fee payable at Closing equal to seven An underwriting discount of eight percent (78%) as set forth in Section 1.1(a) and (c);
(ii) Up to $125,000 (including reimbursement of the Representative’s legal fees up to a maximum amount of $100,000) for expenses (exclusive of costs incurred by the Representative in connection with any road show and marketing trips) less any advances previously paid, including, but not limited to, an aggregate gross proceeds raised in of $70,000 previously advanced to the OfferingRepresentative (the “Advances”); and
(iiiii) The Representative’s Warrants.
(b) The Upon, and only upon, the successful completion of the Offering, the Company grants the Representative the right of first refusal for a period of twelve fifteen (1215) months from the Effective Date effective date of the Offering, to act as lead managing underwriter and book runner or minimally as a co-lead manager and co-book runner and/or co-lead placement agent with at least 50.050% of the economics; , or, in the case of a three-handed deal, 33.0offering 33% of the economics, for any and all future equity, equity-equity linked or debt (excluding commercial bank debt) offerings undertaken by during such fifteen (15) month period of the Company or any successor to or any subsidiaries of the Company. The Company shall provide written notice to Representative with terms of such offering and if Representative fails to accept in writing any such proposal for such public or private sale within 15 20 days after receipt of a written notice from the Company containing such proposal, then Representative will have no claim or right with respect to any such sale contained in any such notice.
(c) The Representative reserves the right after informing the Company, to reduce any item of compensation or adjust the terms thereof as specified herein in the event that a determination shall be made by FINRA to the effect that the Underwriters’ aggregate compensation is in excess of FINRA Rules or that the terms thereof require adjustment.
(d) Whether or not the transactions contemplated by this Agreement, the Registration Statement and the Prospectus are consummated or this Agreement is terminated, the Company hereby agrees to pay all costs and expenses incident to the performance of its obligations hereunder (provided any expenses exceeding $10,000 shall be hereunder, in each case subject to the Company’s prior written approvalaggregate limitations set forth in Section 6(a)(ii), including the following ($35,000 of which has previously been paid by the Company):following:
(i) all expenses in connection with the preparation, printing, formatting for XXXXX and filing of the Registration Statement, any Preliminary Prospectus and the Prospectus and any and all amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers;
(ii) all fees and expenses in connection with the filings made by the representative with FINRA’s Public Offering System;
(iii) all fees and expenses in connection with filing of the Registration Statement and Prospectus with the Commission;
(iv) all the fees, disbursements and expenses of the Company’s counsel and accountants in connection with the registration of the Securities under the Securities Act and the Offering;
(v) all reasonable expenses in connection with the qualifications of the Securities Shares for offering and sale under state or foreign securities or blue sky laws, including up to $10,000 the fees and disbursements of counsel for the fees of Underwriters’ Counsel Underwriters in connection with such qualification and in connection with any blue sky survey undertaken by such counsel;
(vi) all fees and expenses in connection with listing the Securities on the Nasdaq Capital Market[NYSE MKT];
(vii) all reasonable expenses, including without limitation, travel and lodging expenses of the Company’s officers and employees and any other expense of the Company incurred in connection with attending or hosting meetings with prospective purchasers of the Securities (“Road Show Expenses”);
(viii) any stock transfer taxes incurred in connection with this Agreement or the Offering;
(ix) the cost of preparing stock certificates representing the Securities;
(x) the cost and charges of any transfer agent or registrar for the Securities;
(xi) any reasonable cost and expenses in conducting satisfactory due diligence investigation and analysis of the Company’s officers and directorssenior management;
(xii) any reasonable expenses and fees incurred by Underwriters’ Counsel; and
(xiii) all other costs and expenses incident to the performance of the Company obligations hereunder which are not otherwise specifically provided for in this Section 56.
(e) In addition to the costs and expenses set forth in Section 5(d) above, the Company will be responsible for: (i) the cost of two (2) “tombstone” advertisements to be placed in appropriate daily or weekly periodicals of the Representative’s choice (i.e., The Wall Street Journal and The New York Times); and (ii) the cost of leather bound volumes of the Offering documents and Offering commemorative lucite (or other reasonable form) memorabilia, both to be supplied to the Representative, in such quantities as Representative may reasonably request.
(f) It is understood, however, that except as provided in this Section 5Section, and Sections 7, 8 and 11(d12(d) hereof, the Underwriters will pay all of their own costs and expenses, including the fees of their counsel. Notwithstanding anything to the contrary in this Section 56, in the event that this Agreement is terminated pursuant to Section 11(b6 or 12(b) hereof, or subsequent to a Material Adverse Change, the Company will pay, pay up to $125,000 (less any advances previously paid (the “Advances”)) and will not pay the amount detailed in Sections 6 (a) (ii) hereof. In the event the Offering is completed, all out-of-pocket expenses of the Underwriters (including but not limited to fees and disbursements of Underwriters’ Counsel and reasonable travel) incurred in connection herewith which shall be limited to expenses which are actually incurred as allowed under FINRA Rule 5110 and the aggregate amount of such expenses to be reimbursed by the Company shall not exceed will pay to the Representative up to $100,000.125,000, less any Advances as detailed in Sections 6 (a) (ii) hereof at the Closing
Appears in 1 contract
Consideration; Payment of Expenses. (a) In consideration of the services to be provided for hereunder, the Company shall pay to the Underwriters Underwriter or their respective designees their its designee(s) the following compensation (or pro rata portion (based on the Securities purchasedthereof, if applicable) of the following compensation with respect to the Securities which they are offeringpurchased from the Company in this Offering:
(i) A cash fee payable at Closing an underwriting discount equal to seven percent (77.0%) of the aggregate gross proceeds (inclusive the Over-allotment Option to purchase the Additional Shares) raised in the Offering;
(ii) a non-accountable expense allowance of one percent (1.0%) of the gross proceeds of the Offering;
(iii) an accountable expense allowance of up to $225,000, of which $200,000 has already been paid to the Underwriter as an advance against accountable expenses; and
(iiiv) The the Company shall grant to the Underwriter or its designated affiliates share purchase warrants (the “Representative’s Warrants”) covering a number of shares equal to seven percent (7.0%) of the total number of Firm Shares and Additional Shares sold in this Offering.
(b) In compliance with FINRA Rule 5110(e)(1), the Representative’s Warrants and the underlying securities will be locked up for 180 days following the date of commencement of sales of the Offering and will expire three (3) years after the Effective Date, subject to certain exceptions as set forth in FINRA Rule 5110(e)(2). The Representative’s Warrants are non-exercisable for six (6) months after the close of the Offering and will expire three (3) years after the sales of the Offering. The Representative’s Warrants will be exercisable at a price equal to one hundred and fifteen percent (125%) of the public offering price of the underlying Ordinary Shares in connection with the Offering. The Representative’s Warrants shall not be redeemable. The Company grants will register the Representative Ordinary Shares underlying the right Representative’s Warrants under the Act and will file all necessary undertakings in connection therewith. The Representative’s Warrants and the underlying securities shall not be sold during the Offering, or sold, transferred, assigned, pledged, or hypothecated, or be the subject of first refusal any hedging, short sale, derivative, put, or call transaction that would result in the effective economic disposition of the securities by any person for a period of twelve 180 days beginning on the date of commencement of sales of the Offering, except that they may be transferred to any member participating in the Offering and the officers or partners thereof, if all securities so transferred remain subject to the lock-up restriction for the remainder of the time period. The Underwriter will have the option to exercise, transfer or assign the Representative’s Warrants at any time, provided that the underlying securities shall not be transferred during the lock-up period; i.e., the Shares underlying the Representative’s Warrants shall remain subject to the 180-day lock-up period. The Representative’s Warrants may be exercised as to all or a lesser number of the underlying Ordinary Shares, will provide for cashless exercise and will contain provisions for one demand registration of the sale of the underlying Ordinary Share at the Company’s expense, an additional demand registration at the Representative’s Warrants holder’s expense, and unlimited “piggyback” registration rights at the Company’s expense, each with a duration of no more than three (123) months years from the Effective Date to act as lead managing underwriter and book runner or minimally as a co-lead manager and co-book runner and/or co-lead placement agent with at least 50.0% date of commencement of sales of the economics; or, offering in compliance with FINRA Rule 5110(g)(8)(D). The Representative’s Warrants shall further provide for adjustment in the case number and price of a three-handed dealsuch warrants (and the Ordinary Share underlying such Warrants) in the event of recapitalization, 33.0% merger or other structural transaction to prevent dilution. In the event that the Company chooses to disengage or terminate Network 1 Financial Securities, Inc. as its Underwriter prior to the effectiveness of the economics, for any and all future equity, equity-linked or debt (excluding commercial bank debt) offerings undertaken by Registration Statement but after the Company or any subsidiaries initial filing of the Registration Statement with the SEC (other than termination for “cause,” for Network 1 Financial Securities, Inc.’s material failure to provide the services contemplated in this Agreement, which will eliminate the Company. The Company shall provide written notice to Representative with terms of such offering and if Representative fails to accept in writing any such proposal for such public or private sale within 15 days after receipt of a written notice from the Company containing such proposal, then Representative will have no claim or right ’s obligations with respect to the payment of any such sale contained in any such noticefees with respect to this Section) Network 1 Financial Securities, Inc. will be due the full amount of the Representative’s Warrants that would be due to them at the Closing Date of the IPO.
(c) The Representative Underwriter reserves the right to reduce any item of compensation or adjust the terms thereof as specified herein in the event that a determination shall be made by FINRA to the effect that the UnderwritersUnderwriter’ aggregate compensation is in excess of FINRA Rules or that the terms thereof require adjustment.
(d) Whether or not the transactions contemplated by this Agreement, the Registration Statement and the Prospectus are consummated or this Agreement is terminated, the Company hereby agrees to pay all costs and expenses incident to the performance of its obligations hereunder (provided any expenses exceeding $10,000 shall be subject to the Company’s prior written approval)Offering, including the following ($35,000 of which has previously been paid by the Company):following:
(i) all expenses in connection with the preparation, printing, formatting for XXXXX and filing of the Registration Statement, any Preliminary Prospectus and the Prospectus and any and all amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters Underwriter and dealers;
(ii) all fees and expenses in connection with filings with FINRA’s Public Offering System;
(iii) all fees and expenses in connection with filing of the Registration Statement and Prospectus with the Commission;
(iv) all fees, disbursements and expenses of the Company’s counsel and accountants in connection with the registration of the Securities under the Securities Act and the Offering;
(viv) all reasonable expenses in connection with the qualifications of the Securities for offering and sale under state or foreign securities or blue sky laws, including up to $10,000 for the fees of Underwriters’ Counsel in connection with such qualification and in connection with any blue sky survey undertaken by such counsel;
(viv) all fees and expenses in connection with listing the Securities on the Nasdaq Capital Marketa national securities exchange;
(viivi) all reasonable travel expenses of the Company’s officers officers, directors and employees and any other expense of the Company incurred in connection with attending or hosting meetings with prospective purchasers of the Securities Securities;
(vii) all fees and expenses in connection with any “Road Show Expenses”)due diligence” meetings;
(viii) all the road show expenses incurred by the Company;
(ix) any stock transfer taxes or other taxes incurred in connection with this Agreement or the Offering;
(ixx) the costs associated with book building, prospectus tracking and compliance software and the cost of preparing certificates representing the Securities;
(xxi) the cost and charges of any transfer agent or registrar for the Securities;
(xixii) any reasonable cost costs and expenses incurred in conducting satisfactory due diligence investigation and analysis background checks of the Company’s officers and directorsdirectors by a background search firm acceptable to the Underwriter, not to exceed $15,000;
(xiixiii) any reasonable expenses the costs associated with bound volumes and fees incurred by Underwriters’ Counselmementos in such quantities as the Underwriter may reasonably request, not to exceed $2,500; and
(xiiixiv) all other costs fees and expenses incident to the performance of the Company obligations hereunder which are Underwriter’s legal counsel, not otherwise specifically provided for in this Section 5to exceed $75,000.
(e) In addition to the costs and expenses set forth in Section 5(d) above, the Company will be responsible for: (i) the cost of two (2) “tombstone” advertisements to be placed in appropriate daily or weekly periodicals of the Representative’s choice (i.e., The Wall Street Journal and The New York Times); and (ii) the cost of leather bound volumes of the Offering documents and Offering commemorative lucite (or other reasonable form) memorabilia, both to be supplied to the Representative, in such quantities as Representative may reasonably request.
(f) It is understood, however, that except as provided in this Section 56, and Sections 78, 8 9 and 11(d) hereof, the Underwriters Underwriter will pay all of their own costs and expenses. Notwithstanding anything to the contrary in this Section 56, in the event that this Agreement is terminated pursuant to Section 11(b12(b) hereof, or subsequent to a Material Adverse Change, the Company will pay, less any advances previously paid which as of the date hereof is $200,000, including $75,000 as an advance to be applied towards the accountable expenses allowance (the “AdvancesAdvance”), all $50,000 paid upon the first confidential filing of the Registration Statement, and $75,000 paid at the time the Company files the Registration Statement publicly. On the Closing Date, the Company shall pay the Underwriter $25,000 such that as of the Closing Date the Company shall have paid the Underwriter a total of no more than $225,000 in respect of such accountable expenses pursuant to this Section 6(e). All documented out-of-pocket expenses of the Underwriters Underwriter (including but not limited to fees and disbursements of Underwriters’ Underwriter’s Counsel and reasonable and accountable travel) incurred in connection herewith which shall be limited to expenses which are actually incurred as allowed under FINRA Rule 5110 and in any event, the aggregate amount of such expenses to be reimbursed by the Company shall not exceed $100,000225,000, including the Advances. To the extent that the Underwriter’ out-of-pocket expenses are less than the Advance, the Underwriter will return to the Company that portion of the Advances not offset by actual expenses in accordance with FINRA Rule 5110(g)(4)(A).
Appears in 1 contract
Consideration; Payment of Expenses. (a) In consideration of the services to be provided for hereunder, the Company shall pay to the Underwriters or their respective designees their pro rata portion (based on the Securities purchased) of the following compensation with respect to the Securities which they are offering:
(i) A cash fee payable at Closing shall receive an underwriting discount equal to seven percent (77.0%) of the aggregate gross proceeds raised in the Offering; andoffering.
(i) A warrant solicitation fee of three percent (3.0%) of the gross cash proceeds received by the Company from time to time in connection with the exercise of any Warrant in compliance with FINRA Rule 5110(f)(2)(J), payable within three (3) business days of receipt by the Company of any proceeds from the exercise of such Warrant.
(ii) The Representative’s Warrants.
(b) The Provided that aggregate net proceeds actually received by the Company on the Closing Date from the sale of Units is at least $8.0 million, the Company grants the Representative the right of first refusal for a period of twelve nine (129) months from the Effective Date date of commencement of sales pursuant to the Prospectus to act as lead managing underwriter and sole book runner or minimally as a co-lead manager and co-book runner and/or co-lead placement agent with at least 50.0% of the economics; or, in the case of a three-handed deal, 33.0% of the economics, for any and all future equity, equity-linked underwritten public equity or convertible debt (excluding commercial bank debt) offerings undertaken by the Company or any subsidiaries of in the CompanyUnited States. The Company shall provide written notice to the Representative with the terms of such offering and if the Representative fails to accept in writing any such proposal for such public or private sale within 15 ten (10) days after receipt of a such written notice from the Company containing such proposalnotice, then the Representative will have no claim or right with respect to any such sale contained in any such noticeoffering.
(ciii) The Representative reserves the right to reduce any item of compensation or adjust the terms thereof as specified herein in the event that a determination shall be made by FINRA to the effect that the Underwriters’ aggregate compensation is in excess of FINRA Rules rules or that the terms thereof require adjustment.
(div) Whether or not the transactions contemplated by this Agreement, the Registration Statement and the Prospectus are consummated or this Agreement is terminated, the Company hereby agrees to pay all costs and expenses incident to the performance of its obligations hereunder (provided any expenses exceeding $10,000 shall be subject to the Company’s prior written approval), including the following ($35,000 of which has previously been paid by the Company):following:
(i1) all expenses in connection with the preparation, printing, formatting for XXXXX and filing of the Registration Statement, any Preliminary Prospectus and the Prospectus and any and all exhibits, amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers;
(ii2) all fees and expenses in connection with filings with FINRA’s Public Offering System;
(iii) all fees and expenses in connection with filing of the Registration Statement and Prospectus with the Commission;
(iv3) all fees, disbursements and expenses of the Company’s counsel counsel, accountants and accountants other agents and representatives in connection with the registration of the Securities under the Securities Act and the Offeringoffering;
(v4) all reasonable expenses in connection with the qualifications of the Securities for offering and sale under state or foreign securities or blue sky lawslaws (including, including without limitation, all filing and registration fees, and up to $10,000 for the 5,000 in fees and disbursements of Underwriters’ Counsel in connection with such qualification and in connection with any blue sky survey undertaken by such counsel;
(vi5) all fees and expenses in connection with listing the Securities on the Nasdaq Capital Marketa national securities exchange;
(vii6) all reasonable expenses, including travel expenses and lodging expenses, of the Company’s officers officers, directors and employees and any other expense of the Company incurred in connection with attending or hosting meetings with prospective purchasers of the Securities (“Road Show Expenses”)Securities;
(viii7) any stock transfer taxes or other taxes incurred in connection with this Agreement or the Offeringoffering, including any stock transfer taxes payable upon the transfer of securities to the Underwriters;
(ix) 8) the cost of preparing costs associated with preparing, printing and delivering certificates representing the Securities;
(x9) the cost and charges of any transfer agent or registrar for the Securities;
(xi10) any reasonable cost and expenses in conducting satisfactory due diligence investigation and analysis of subject to the Company’s officers and directors;
following proviso, other costs (xii) any reasonable expenses and fees incurred by including Underwriters’ Counsel; and
(xiiicounsel’s fees and expenses) all other costs and expenses incident to the performance of the Company obligations hereunder which Offering that are not otherwise specifically provided for in this Section 5.
(e) In addition to the 4(k); provided, however, that all such costs and expenses set forth (including Underwriters’ counsel’s fees and expenses) that are incurred by the Underwriters shall not exceed $60,000 in Section 5(d) abovethe aggregate, which amount includes the $30,000 advance previously paid by the Company will be responsible for: (i) the cost of two (2) “tombstone” advertisements to be placed in appropriate daily or weekly periodicals of the Representative’s choice (i.e., The Wall Street Journal and The New York Times); and (ii) the cost of leather bound volumes of the Offering documents and Offering commemorative lucite (or other reasonable form) memorabilia, both to be supplied to the Representative, in such quantities as Representative may reasonably request.
(f) It is understood, however, that except as provided in this Section 5, and Sections 7, 8 and 11(d) hereof, the Underwriters will pay all Maxim shall return any portion of their own costs and expenses. Notwithstanding anything advances not applied to the contrary in this Section 5, in the event that this Agreement is terminated pursuant to Section 11(b) hereof, or subsequent to a Material Adverse Change, the Company will pay, less any advances previously paid (the “Advances”), all actual out-of-pocket expenses of the Underwriters (including but not limited to fees and disbursements of Underwriters’ Counsel and reasonable travel) incurred in connection herewith which shall be limited to expenses which are actually incurred as allowed under FINRA Rule 5110 and the aggregate amount of such expenses to be reimbursed by the Company shall not exceed $100,000expenses.
Appears in 1 contract
Samples: Underwriting Agreement (ImmunoCellular Therapeutics, Ltd.)
Consideration; Payment of Expenses. (a) In consideration of the services to be provided for hereunder, the Company shall pay to the Underwriters Underwriter or their respective designees their pro rata portion (based on the Securities purchased) of the following compensation with respect to the Securities which they are offeringpurchase from the Company in this Offering:
(i) A cash fee payable at Closing an underwriting discount equal to seven and one-half percent (77.5%) of the aggregate gross proceeds raised in the Offering;
(ii) a non-accountable expense allowance of one and one-half percent (1.5%) of the gross proceeds of the Offering;
(iii) an accountable expense allowance of up to $150,000, of which $100,000 has already been paid to the Underwriter as an advance against accountable expenses; and
(iiiv) The Representativethe Company shall grant to the Underwriter or its designated affiliates share purchase warrants (the “Underwriter’s Warrants”) covering a number of shares equal to seven and half percent (7.5%) of the total number of Firm and Option Shares sold in this offering.
(b) In compliance with FINRA Rule 5110(e)(1), the Underwriter’s Warrants and the underlying securities will be locked up for 180 beginning on the date of commencement of sales of the Offering and will expire five (5) years after the Effective Date. The Underwriter’s Warrants will be exercisable at a price equal to one hundred and thirty percent (130%) of the public offering price of the underlying Class A Ordinary Shares in connection with the Offering. The Underwriter’s Warrants shall not be redeemable. The Company grants will register the Representative Class A Ordinary Shares underlying the right Underwriter’s Warrants under the Act and will file all necessary undertakings in connection therewith. The Underwriter’s Warrants and the underlying securities shall not be sold during the Offering, or sold, transferred, assigned, pledged, or hypothecated, or be the subject of first refusal any hedging, short sale, derivative, put, or call transaction that would result in the effective economic disposition of the securities by any person for a period of twelve 180 days beginning on the date of commencement of sales of the Offering, except that they may be transferred to any member participating in the Offering and the officers or partners thereof, if all securities so transferred remain subject to the lock-up restriction for the remainder of the time period. The Underwriter’s Warrants may be exercised as to all or a lesser number of the underlying Class A Ordinary Shares, will provide for cashless exercise and will contain provisions for one demand registration of the sale of the underlying Class A Ordinary Share at the Company’s expense, an additional demand registration at the Underwriter’s Warrants holder’s expense, and unlimited “piggyback” registration rights for a period of three (123) months from years after the Effective Date to act as lead managing underwriter and book runner or minimally as a co-lead manager and co-book runner and/or co-lead placement agent with at least 50.0% of the economics; or, Company’s expense. The Underwriter’s Warrants shall further provide for adjustment in the case of a three-handed deal, 33.0% of the economics, for any number and all future equity, equity-linked or debt (excluding commercial bank debt) offerings undertaken by the Company or any subsidiaries of the Company. The Company shall provide written notice to Representative with terms price of such offering warrants (and if Representative fails the Class A Ordinary Share underlying such Warrants) in the event of recapitalization, merger or other structural transaction to accept in writing any such proposal for such public or private sale within 15 days after receipt of a written notice from the Company containing such proposal, then Representative will have no claim or right with respect to any such sale contained in any such noticeprevent dilution.
(c) The Representative Underwriter reserves the right to reduce any item of compensation or adjust the terms thereof as specified herein in the event that a determination shall be made by FINRA to the effect that the UnderwritersUnderwriter’ aggregate compensation is in excess of FINRA Rules or that the terms thereof require adjustment.
(d) Whether or not the transactions contemplated by this Agreement, the Registration Statement and the Prospectus are consummated or this Agreement is terminated, the Company hereby agrees to pay all costs and expenses incident to the performance of its obligations hereunder (provided any expenses exceeding $10,000 shall be subject to the Company’s prior written approval)Offering, including the following ($35,000 of which has previously been paid by the Company):following:
(i) all expenses in connection with the preparation, printing, formatting for XXXXX and filing of the Registration Statement, any Preliminary Prospectus and the Prospectus and any and all amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters Underwriter and dealers;
(ii) all fees and expenses in connection with filings with FINRA’s Public Offering System;
(iii) all fees and expenses in connection with filing of the Registration Statement and Prospectus with the Commission;
(iv) all fees, disbursements and expenses of the Company’s counsel and accountants in connection with the registration of the Securities under the Securities Act and the Offering;
(viv) all reasonable expenses in connection with the qualifications of the Securities for offering and sale under state or foreign securities or blue sky laws, including up to $10,000 for the fees of Underwriters’ Counsel in connection with such qualification and in connection with any blue sky survey undertaken by such counsel;
(viv) all fees and expenses in connection with listing the Securities on the Nasdaq Capital Marketa national securities exchange;
(viivi) all reasonable travel expenses of the Company’s officers officers, directors and employees and any other expense of the Company incurred in connection with attending or hosting meetings with prospective purchasers of the Securities Securities;
(“Road Show Expenses”)vii) all the road show expenses incurred by the Company;
(viii) any stock transfer taxes or other taxes incurred in connection with this Agreement or the Offering;
(ix) the costs associated with book building, prospectus tracking and compliance software and the cost of preparing certificates representing the Securities;
(x) the cost and charges of any transfer agent or registrar for the Securities;
(xi) any reasonable cost costs and expenses incurred in conducting satisfactory due diligence investigation and analysis background checks of the Company’s officers and directorsdirectors by a background search firm acceptable to the Underwriter, not to exceed $15,000;
(xii) any reasonable expenses and fees incurred by Underwriters’ Counsel; and
(xiii) all other costs and expenses incident to the performance of the Company obligations hereunder which are not otherwise specifically provided for in this Section 5.
(e) In addition to the costs and expenses set forth in Section 5(d) above, the Company will be responsible for: (i) the cost of two (2) “tombstone” advertisements to be placed in appropriate daily or weekly periodicals of the Representative’s choice (i.e., The Wall Street Journal and The New York Times); and (ii) the cost of leather associated with bound volumes of the Offering documents and Offering commemorative lucite (or other reasonable form) memorabilia, both to be supplied to the Representative, mementos in such quantities as Representative the Underwriter may reasonably request.
(f) It is understood, however, that except as provided in this Section 5, and Sections 7, 8 and 11(d) hereof, the Underwriters will pay all of their own costs and expenses. Notwithstanding anything not to the contrary in this Section 5, in the event that this Agreement is terminated pursuant to Section 11(b) hereof, or subsequent to a Material Adverse Change, the Company will pay, less any advances previously paid (the “Advances”), all out-of-pocket expenses of the Underwriters (including but not limited to fees and disbursements of Underwriters’ Counsel and reasonable travel) incurred in connection herewith which shall be limited to expenses which are actually incurred as allowed under FINRA Rule 5110 and the aggregate amount of such expenses to be reimbursed by the Company shall not exceed $100,000.2,500; and
Appears in 1 contract
Samples: Underwriting Agreement (Golden Sun Education Group LTD)
Consideration; Payment of Expenses. (a) In consideration of the services to be provided for hereunder, the Company shall pay to the Underwriters Underwriter or their respective designees their its designee(s) the following compensation (or pro rata portion (based on the Securities purchasedthereof, if applicable) of the following compensation with respect to the Securities which they are offeringpurchased from the Company in this Offering:
(i) A cash fee payable at Closing an underwriting discount equal to seven and one half percent (77.5%) of the aggregate gross proceeds raised in the Offering;
(ii) a non-accountable expense allowance of one percent (1%) of the gross proceeds of the Offering;
(iii) an accountable expense allowance of up to $250,000, of which [$120,000] has already been paid to the Underwriter as an advance against accountable expenses; and
(iiiv) The Representativethe Company shall grant to the Underwriter or its designated affiliates share purchase warrants (the “Underwriter’s Warrants”) covering a number of shares equal to five percent (5%) of the total number of Firm Shares and Option Shares sold in this offering.
(b) In compliance with FINRA Rule 5110(e)(1), the Underwriter’s Warrants and the underlying securities will be locked up for 180 days beginning on the date of commencement of sales of the Offering and will expire five (5) years after the Effective Date. The Underwriter’s Warrants will be exercisable at a price equal to one hundred twenty percent (120%) of the public offering price of the underlying Class A Ordinary Shares in connection with the Offering. The Underwriter’s Warrants shall not be redeemable. The Company grants will register the Representative Class A Ordinary Shares underlying the right Underwriter’s Warrants under the Act and will file all necessary undertakings in connection therewith. The Underwriter’s Warrants and the underlying securities shall not be sold during the Offering, or sold, transferred, assigned, pledged, or hypothecated, or be the subject of first refusal any hedging, short sale, derivative, put, or call transaction that would result in the effective economic disposition of the securities by any person for a period of twelve 180 days beginning on the date of commencement of sales of the Offering, except that they, or any portion thereof, may be transferred or assigned to any successor to the Underwriter, any officer, manager, member or partner of the Underwriter, as well as to any member participating in the Offering and the officers, or partners, managers or members thereof, if all securities so transferred remain subject to the lock-up restriction for the remainder of the time period. The Underwriter may exercise the Underwriter’s Warrants at any time after issuance thereof, as to all or a lesser number of the underlying Class A Ordinary Shares, provided that such Class A Ordinary Shares underlying such Underwriter Warrants will remain subject to the 180-day lock-up period. The Underwriter’s Warrants will provide for cashless exercise and will contain provisions for one demand registration of the sale of the underlying Class A Ordinary Share at the Company’s expense, an additional demand registration at the Underwriter’s Warrants holder’s expense, and unlimited “piggyback” registration rights for a period of five (125) months years after the Effective Date at the Company’s expense and provided that the demand registration rights will not be for more than five years from the Effective Date to act as lead managing underwriter and book runner or minimally as a co-lead manager and co-book runner and/or co-lead placement agent with at least 50.0% of the economics; or, Date. The Underwriter’s Warrants shall further provide for adjustment in the case of a three-handed deal, 33.0% of the economics, for any number and all future equity, equity-linked or debt (excluding commercial bank debt) offerings undertaken by the Company or any subsidiaries of the Company. The Company shall provide written notice to Representative with terms price of such offering warrants (and if Representative fails the Class A Ordinary Share underlying such Warrants) in the event of recapitalization, merger or other structural transaction to accept in writing any such proposal for such public or private sale within 15 days after receipt of a written notice from the Company containing such proposal, then Representative will have no claim or right with respect to any such sale contained in any such noticeprevent dilution.
(c) The Representative Underwriter reserves the right to reduce any item of compensation or adjust the terms thereof as specified herein in the event that a determination shall be made by FINRA to the effect that the UnderwritersUnderwriter’ aggregate compensation is in excess of FINRA Rules or that the terms thereof require adjustment.
(d) Whether or not the transactions contemplated by this Agreement, the Registration Statement Statement, the Post-Effective Amendment and the Prospectus are consummated or this Agreement is terminated, the Company hereby agrees to pay all costs and expenses incident to the performance of its obligations hereunder (provided any expenses exceeding $10,000 shall be subject to the Company’s prior written approval)Offering, including the following ($35,000 of which has previously been paid by the Company):following:
(i) all expenses in connection the costs of preparing, printing and filing the Registration Statement with the preparationSEC, printing, formatting for XXXXX and filing of the Registration Statement, any Preliminary Prospectus and the Prospectus and any and all amendments and supplements thereto thereto, and post effective amendments, as well as the filing with FINRA, and payment of all necessary fees in connection therewith and the mailing printing of a sufficient quantity of preliminary and delivering of copies thereof to final prospectuses as the Underwriters and dealersRepresentative may reasonably request;
(ii) all fees the costs of preparing, printing and expenses delivering exhibits thereto, in connection with filings with FINRA’s Public Offering Systemsuch quantities as the Representative may reasonably request;
(iii) all fees fees, expenses and expenses in connection with filing disbursements relating to the registration, qualification or exemption of securities offered under the Registration Statement and Prospectus with securities laws of foreign jurisdictions designated by the CommissionRepresentative;
(iv) all fees, disbursements and expenses the fees of the Company’s counsel and accountants in connection with the registration of the Securities under the Securities Act and the Offeringcounsel;
(v) all reasonable expenses in connection with and accountants for the qualifications of the Securities for offering and sale under state or foreign securities or blue sky lawsCompany, including up to $10,000 for the fees of Underwriters’ Counsel in connection with such qualification and in connection associated with any blue sky survey undertaken by such counselfilings where applicable;
(vi) all fees and expenses in connection associated with listing the Securities on the Nasdaq Capital MarketCompany's transfer agent;
(vii) all reasonable travel expenses of the Company’s officers and employees and any other expense of the Company incurred in connection fees, if necessary, associated with attending or hosting meetings with prospective purchasers of the Securities (“Road Show Expenses”)translation services;
(viii) any stock transfer taxes incurred in connection with this Agreement or the Offeringexpenses related to road shows;
(ix) the cost costs of preparing certificates representing the Securitiesany pre-approved due diligence meetings;
(x) the cost and charges of any transfer agent or registrar for the Securities;
(xi) any reasonable cost and expenses in conducting satisfactory due diligence investigation and analysis of the Company’s officers and directors;
(xii) any reasonable expenses and fees incurred by Underwriters’ Counsel; and
(xiii) all other costs and expenses incident to the performance of the Company obligations hereunder which are not otherwise specifically provided for in this Section 5.
(e) In addition to the costs and expenses set forth in Section 5(d) above, the Company will be responsible for: (i) the cost of two (2) “tombstone” advertisements to be placed in appropriate daily or weekly periodicals of the Representative’s choice (i.e., The Wall Street Journal and The New York Times); and (ii) the cost of leather bound volumes of the Offering documents and Offering commemorative lucite (or other reasonable form) memorabilia, both to be supplied to the Representative, in such quantities as Representative may reasonably request.
(f) It is understood, however, that except as provided in this Section 56, and Sections 78, 8 9 and 11(d) hereof, the Underwriters Underwriter will pay all of their own costs and expenses. Notwithstanding anything to the contrary in this Section 56, in the event that this Agreement is terminated pursuant to Section 11(b) hereof, or subsequent to a Material Adverse Change, the Company will paypay $250,000, less any advances previously paid which as of the date hereof is $120,000, as an advance to be applied towards the accountable expenses allowance (the “AdvancesAdvance”). On the Closing Date, all the Company shall pay the Underwriter $130,000, such that as of the Closing Date the Company shall have paid the Underwriter a total of no more than $250,000 in respect of such accountable expenses pursuant to this Section 6(e). All documented out-of-pocket expenses of the Underwriters Underwriter (including but not limited to tombstone, fees and disbursements of Underwriters’ Counsel Underwriter’s Counsel, and reasonable and accountable travel) incurred in connection herewith which shall be limited to expenses which are actually incurred as allowed under FINRA Rule 5110 5110(g)(4)(A) and in any event, the aggregate amount of such expenses to be reimbursed by the Company shall not exceed $100,000250,000, including the Advances. To the extent that the Underwriter’ out-of-pocket expenses are less than the Advance, the Underwriter will return to the Company that portion of the Advances not offset by actual expenses, regardless of whether the offering is terminated.
Appears in 1 contract
Consideration; Payment of Expenses. (a) In consideration of the services to be provided for hereunder, the Company shall pay to the Underwriters or their respective designees their pro rata portion (based on the Securities purchased) of the following compensation with respect to the Securities which they are offering:
(i) A cash fee payable at Closing equal to An underwriting discount of seven and one-half percent (77.50%) of the aggregate gross proceeds raised in the Offering; and
(ii) The Representative’s Warrants.
(b) The Subject in all respects to the Company’s obligations to Jxxxxxxxx LLC pursuant to that certain engagement letter dated April 5, 2013, and subsequently amended on April 17, 2015, the Company grants the Representative the right of first refusal for a period of twelve (12) months from beginning on the Effective Date through December 31, 2016, to act as lead managing underwriter and book runner or minimally as a co-lead manager and co-book runner and/or co-lead placement agent with at least 50.0% of the economics; or, in the case of a three-handed deal, 33.0% of the economics, for any and all future public equity, equity-linked or debt (excluding commercial bank debtdebt and credit facility) offerings undertaken by the Company or any subsidiaries of the CompanySubsidiaries. The Company shall provide written notice to the Representative with terms of such offering and if the Representative fails to accept in writing any such proposal for such public or private sale within 15 fifteen (15) days after receipt of a such written notice from the Company containing such proposalnotice, then the Representative will have no claim or right with respect to any such sale contained in any such noticeoffering.
(c) In the event that this Agreement is terminated for any reason, the Representative shall be entitled to receive the compensation set forth in Section 5(a) hereof in compliance with FINRA Rules 5110(f)(2)(D), based on gross proceeds received by the Company and total securities issued, in connection with any public or private equity offering consummated by the Company during the twelve (12) months following such termination, with any investor introduced to the Company by Maxim in connection with this Offering.
(d) The Representative reserves the right to reduce any item of compensation or adjust the terms thereof as specified herein in the event that a determination shall be made by FINRA to the effect that the Underwriters’ aggregate compensation is in excess of FINRA Rules or that the terms thereof require adjustment.
(de) Whether or not the transactions contemplated by this Agreement, the Registration Statement and the Prospectus are consummated or this Agreement is terminated, the Company hereby agrees to pay all costs and expenses incident to the performance of its obligations hereunder (provided any expenses exceeding $10,000 shall be subject to the Company’s prior written approval)this Offering, including the following ($35,000 of which has previously been paid by the Company):following:
(i) all expenses in connection with the preparation, printing, formatting for XXXXX EXXXX and filing of the Registration Statement, any Preliminary Prospectus and the Prospectus and any and all amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers;
(ii) all fees and expenses in connection with filings with FINRA’s Public Offering System;
(iii) all fees and expenses in connection with filing of the Registration Statement and Prospectus with the Commission;
(iv) all fees, disbursements and expenses of the Company’s counsel counsel, accountants and accountants other agents and representatives in connection with the registration of the Securities under the Securities Act and the Offering;
(viv) if the Offering is commenced on the NASDAQ Capital Market, all fees and expenses in connection with listing the Securities on the such market and all reasonable expenses in connection with the qualifications of the Securities for offering and sale under state or foreign securities or blue sky laws, including up to an initial payment of $10,000 for the fees of Underwriters’ Counsel in connection with such qualification and in connection with any blue sky survey undertaken by such counsel, with the balance of such Underwriters’ Counsel’s fees to be due at the Closing subject to a maximum of $120,000 (“Legal Expenses”), including the initial $10,000 payment;
(viv) if the Offering is commenced on the NASDAQ Global Market, NYSE or NYSE AMEX, all fees and expenses in connection with listing the Securities on the Nasdaq Capital Marketsuch market, including a one-time payment to Underwriter’s counsel of $5,000 at Closing in connection with such listing;
(viivi) all reasonable travel expenses of the Company’s officers and employees and any other expense of the Company incurred in connection with attending or hosting meetings with prospective purchasers of the Securities (“Road Show Expenses”);
(viiivii) any stock transfer taxes or other taxes incurred in connection with this Agreement or the Offering;
(ixviii) the costs associated with book building, prospectus tracking and compliance software and the cost of preparing certificates representing the Securities;
(xix) the cost and charges of any transfer agent or registrar for the Securities;
(xix) any reasonable cost and expenses in conducting satisfactory due diligence investigation and analysis background checks of the Company’s officers and directorsdirectors by a background search firm acceptable to the Representative;
(xii) any reasonable expenses and fees incurred by Underwriters’ Counsel; and
(xiii) all other costs and expenses incident to the performance of the Company obligations hereunder which are not otherwise specifically provided for in this Section 5.
(e) In addition to the costs and expenses set forth in Section 5(d) above, the Company will be responsible for: (ixi) the cost of two (2) “tombstone” advertisements to be placed in appropriate daily or weekly periodicals of the Representative’s choice (i.e., The Wall Street Journal and The New York Times); and (ii) the cost of leather bound volumes of the Offering documents and Offering commemorative lucite (or other reasonable form) memorabilia, both to be supplied to the Representative, in such quantities as Representative may reasonably request.
(f) It is understood, however, that except as provided in this Section 5, and Sections 7, 8 and 11(d) hereof, the Underwriters will pay all of their own costs and expenses. Notwithstanding anything to the contrary in this Section 5, in the event that this Agreement is terminated pursuant to Section 11(b) hereof, or subsequent to a Material Adverse Change, the Company will pay, less any advances previously paid (the “Advances”), all out-of-pocket expenses of the Underwriters (including but not limited to fees and disbursements of Underwriters’ Counsel and reasonable travel) incurred in connection herewith which shall be limited to expenses which are actually incurred as allowed under FINRA Rule 5110 and the aggregate amount of such expenses to be reimbursed by the Company shall not exceed $100,000.;
Appears in 1 contract
Consideration; Payment of Expenses. (a) In consideration of the services to be provided for hereunder, the Company shall pay to the Underwriters or their respective designees their pro rata portion (based on the Securities purchased) of the following compensation with respect to the Securities Shares which they are offering:
(i) A cash fee payable at Closing equal to seven An underwriting discount of eight percent (78%) of the aggregate gross proceeds raised in of the OfferingOffering (exclusive of any gross proceeds that originate from Sigma Tau Finanziaria, S.p.A. or any of its Affiliates (collectively, “Sigma Tau”) with respect to which amount no underwriting discount shall be payable); and
(ii) The Representative’s Warrants.
(b) The If the Offering results in net proceeds to the Company (after underwriting discounts and the payment of the Company expenses related to the Offering) of at least $5.0 million, the Company grants the Representative the right of first refusal for a period of twelve (12) months from the Effective Date participation to act as lead managing underwriter and book runner or minimally as a co-lead manager and co-book runner and/or or co-lead placement agent with at least 50.0% fifty percent (50%) of the economics; or, or in the case of a three-handed deal, 33.0% deal thirty-three percent (33%) of the economicseconomics for a period of six (6) months from the Closing Date, for any and all future equitypublic and private equity offerings and any convertible debt offerings, equity-linked or debt (excluding commercial ordinary course of business financings such as bank debt) offerings undertaken lines of credit, accounts receivable, factoring and financing generated by the Company or any subsidiaries successor to or any subsidiary of the Company. The Company shall provide written notice to Representative with terms of such offering and if Representative fails to accept in writing any such proposal for such public or private sale within 15 twenty (20) days after receipt of a written notice from the Company containing such proposal, then Representative will have no claim or right with respect to any such sale contained in any such notice.
(c) The Representative reserves the right to reduce any item of compensation or adjust the terms thereof as specified herein in the event that a determination shall be made by FINRA to the effect that the Underwriters’ aggregate compensation is in excess of FINRA Rules or that the terms thereof require adjustment.
(d) Whether or not the transactions contemplated by this Agreement, the Registration Statement and the Prospectus are consummated or this Agreement is terminated, the Company hereby agrees to pay all costs and expenses incident to the performance of its obligations hereunder (provided any expenses exceeding $10,000 shall be subject to the Company’s prior written approval)hereunder, including the following ($35,000 of which has previously been paid by the Company):following:
(i) all expenses in connection with the preparation, printing, formatting for XXXXX and filing of the Registration Statement, any Preliminary Prospectus and the Prospectus and any and all amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers;
(ii) all fees and expenses in connection with the filing of Corporate Offerings Business & Regulatory Analysis (“COBRADesk”) filings with FINRA’s Public Offering System;
(iii) all fees and expenses in connection with filing of the Registration Statement and Prospectus with the Commission;
(iv) all the fees, disbursements and expenses of the Company’s counsel and accountants in connection with the registration of the Securities under the Securities Act and the Offering;
(v) all reasonable expenses in connection with the qualifications of the Securities Shares for offering and sale under state or foreign securities or blue sky laws, including up to $10,000 the fees and disbursements of counsel for the fees of Underwriters’ Counsel Underwriters in connection with such qualification or any analysis in connection with analysis of blue sky laws and in connection with any blue sky by survey undertaken by such counsel;
; (vi) all fees and expenses in connection with listing the Securities on the Nasdaq Capital MarketNYSE Amex stock exchange;
(vii) all reasonable travel expenses of the Company’s officers and employees and any other expense of the Company incurred in connection with attending or hosting meetings with prospective purchasers of the Securities (“Road Show Expenses”);
(viii) any stock transfer taxes incurred in connection with this Agreement or the Offering;
(ix) the cost of preparing certificates representing the Securities;
(x) the cost and charges of any transfer agent or registrar for the Securities;
(xi) any reasonable cost and expenses in conducting satisfactory due diligence investigation and analysis of the Company’s officers and directors;
(xii) any reasonable expenses and fees incurred by Underwriters’ Counsel; and
(xiii) all other costs and expenses incident to the performance of the Company obligations hereunder which are not otherwise specifically provided for in this Section 5.
(e) In addition to the costs and expenses set forth in Section 5(d) above, the Company will be responsible for: (i) the cost of two (2) “tombstone” advertisements to be placed in appropriate daily or weekly periodicals of the Representative’s choice (i.e., The Wall Street Journal and The New York Times); and (ii) the cost of leather bound volumes of the Offering documents and Offering commemorative lucite (or other reasonable form) memorabilia, both to be supplied to the Representative, in such quantities as Representative may reasonably request.
(f) It is understood, however, that except as provided in this Section 5, and Sections 7, 8 and 11(d) hereof, the Underwriters will pay all of their own costs and expenses. Notwithstanding anything to the contrary in this Section 5, in the event that this Agreement is terminated pursuant to Section 11(b) hereof, or subsequent to a Material Adverse Change, the Company will pay, less any advances previously paid (the “Advances”), all out-of-pocket expenses of the Underwriters (including but not limited to fees and disbursements of Underwriters’ Counsel and reasonable travel) incurred in connection herewith which shall be limited to expenses which are actually incurred as allowed under FINRA Rule 5110 and the aggregate amount of such expenses to be reimbursed by the Company shall not exceed $100,000.
Appears in 1 contract
Samples: Underwriting Agreement (Regenerx Biopharmaceuticals Inc)
Consideration; Payment of Expenses. (ai) In consideration of the services to be provided for hereunder, the Company shall pay to the Underwriters Underwriter or their respective designees their pro rata portion (based on the Securities purchased) of the following compensation with respect to the Securities which they are offering:
(i) A cash fee payable at Closing its designee an underwriting discount equal to seven percent (77.0%) of the aggregate gross proceeds raised in the Offering; andoffering;
(ii) The Representative’s Warrants.
(b) The Provided that gross proceeds generated from the sale of Offered Securities is at least $20 million, the Company grants the Representative Underwriter the right of first refusal for a period of twelve (12) months from the Effective Date date of the Prospectus to act as lead managing underwriter and sole book runner or minimally as a co-lead manager and co-book runner and/or co-lead placement agent with at least 50.0% of the economics; or, in the case of a three-handed deal, 33.0% of the economics, for any and all future equity, equity-linked public or debt (excluding commercial bank debt) private equity offerings undertaken by the Company or any subsidiaries of in the CompanyUnited States. The Company shall provide written notice to Representative the Underwriter with the terms of such offering and if Representative the Underwriter fails to accept in writing any such proposal for such public or private sale within 15 ten (10) days after receipt of a such written notice from the Company containing such proposalnotice, then Representative the Underwriter will have no claim or right with respect to any such sale contained in any such noticeoffering.
(ciii) In the event that this Agreement is terminated for any reason, the Underwriter shall be paid a fee equal to seven percent (7%) of the gross proceeds received by the Company in connection with any public or private equity offering made in the United States and consummated by the Company during the twelve (12) months following such termination with any investor contacted by Maxim in connection with this Offering, except to the extent the Company was introduced to any such investor prior to August 6, 2015.
(iv) The Representative Underwriter reserves the right to reduce any item of compensation or adjust the terms thereof as specified herein in the event that a determination shall be made by FINRA to the effect that the Underwriters’ Underwriter’s aggregate compensation is in excess of FINRA Rules rules or that the terms thereof require adjustment.
(dv) Whether or not the transactions contemplated by this Agreement, the Registration Statement and the Prospectus are consummated or this Agreement is terminated, the Company hereby agrees to pay all costs and expenses incident to the performance of its obligations hereunder (provided any expenses exceeding $10,000 shall be subject to the Company’s prior written approval)Offering, including the following ($35,000 of which has previously been paid by the Company):following:
(i1) all expenses in connection with the preparation, printing, formatting for XXXXX and filing of the Registration Statement, any Preliminary Prospectus and the Prospectus and any and all exhibits, amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters Underwriter and dealers;
(ii2) all fees and expenses in connection with filings with FINRA’s Public Offering System;
(iii) all fees and expenses in connection with filing of the Registration Statement and Prospectus with the Commission;
(iv3) all fees, disbursements and expenses of the Company’s counsel counsel, accountants and accountants other agents and representatives in connection with the registration of the Securities under the Securities Act and the Offeringoffering;
(v4) all reasonable expenses in connection with the qualifications of the Securities for offering and sale under state or foreign securities or blue sky laws, including up to $10,000 for the fees of Underwriters’ Counsel in connection with such qualification and in connection with any blue sky survey undertaken by such counsel;
(vi5) all fees and expenses in connection with listing the Securities on the Nasdaq Capital Marketa national securities exchange;
(vii6) all reasonable expenses, including travel expenses and lodging expenses, of the Company’s officers officers, directors and employees and any other expense of the Company or the Underwriter incurred in connection with attending or hosting meetings with prospective purchasers of the Securities (“Road Show Expenses”)Securities;
(viii7) any stock transfer taxes or other taxes incurred in connection with this Agreement or the Offeringoffering;
(ix) 8) the costs associated with book building, prospectus tracking and compliance software and the cost of preparing preparing, printing and delivering certificates representing the Securities;
(x9) the cost and charges of any transfer agent or registrar for the Securities;
(xi10) any reasonable cost costs and expenses incurred in conducting satisfactory due diligence investigation and analysis background checks of the Company’s officers and directors;
(xii) any reasonable expenses and fees incurred directors by Underwriters’ Counsela background search firm acceptable to the Underwriter; and
(xiii11) all subject to the following proviso, other costs (including Underwriter’s Counsel’s fees and expenses) and expenses incident to the performance of the Company obligations hereunder which Offering that are not otherwise specifically provided for in this Section 5.
(e) In addition to the costs and expenses set forth in Section 5(d) above, the Company will be responsible for: (i) the cost of two (2) “tombstone” advertisements to be placed in appropriate daily or weekly periodicals of the Representative’s choice (i.e., The Wall Street Journal and The New York Times4(k); and (ii) the cost of leather bound volumes of the Offering documents and Offering commemorative lucite (or other reasonable form) memorabilia, both to be supplied to the Representative, in such quantities as Representative may reasonably request.
(f) It is understoodprovided, however, that except as provided in this Section 5, and Sections 7, 8 and 11(d) hereof, the Underwriters will pay all of their own such costs and expenses. Notwithstanding anything to the contrary in this Section 5, in the event expenses that this Agreement is terminated pursuant to Section 11(b) hereof, or subsequent to a Material Adverse Change, the Company will pay, less any advances previously paid (the “Advances”), all out-of-pocket expenses of the Underwriters (including but not limited to fees and disbursements of Underwriters’ Counsel and reasonable travel) are incurred in connection herewith which shall be limited to expenses which are actually incurred as allowed under FINRA Rule 5110 and the aggregate amount of such expenses to be reimbursed by the Company Underwriter shall not exceed $100,000200,000 in the aggregate, including the $30,000 advance previously paid by the Company to the Underwriter.
Appears in 1 contract
Consideration; Payment of Expenses. (a) In consideration of the services to be provided for hereunder, the Company shall pay to the Underwriters or their respective designees their pro rata portion (based on the Securities purchased) of the following compensation with respect to the Offered Securities which they are offering:
(i) A cash fee payable at Closing An underwriting discount equal to seven eight percent (78%) of the aggregate gross proceeds raised in the Offering; and
(ii) The Representative’s Underwriters’ Warrants.
(biii) The Additionally, if the Closing occurs, the Company grants the Representative the right of first refusal for a period of twelve (12) months from the Effective Date date of commencement of sales pursuant to the Prospectus to act as lead managing underwriter and sole book runner or minimally as a co-lead manager and co-book runner and/or co-lead placement agent with at least 50.0% of the economics; or, in the case of a three-handed deal, 33.0% of the economics, for any and all future public or private equity, equity-linked or debt offerings (excluding commercial bank debt) offerings undertaken by the Company Company, its Subsidiary(ies), or any subsidiaries of successor thereto, but excluding any private placement in which the CompanyCompany (or its Subsidiary or successor) does not use an underwriter or placement agent. The Company shall provide written notice to the Representative with the terms of such offering and if the Representative fails to accept in writing any such proposal for such public or private sale within 15 ten (10) days after receipt of a such written notice from the Company containing such proposalnotice, then the Representative will have no claim or right with respect to any such sale contained in any such noticeoffering(s).
(civ) The Representative reserves the right to reduce any item of compensation or adjust the terms thereof as specified herein in the event that a determination shall be made by FINRA to the effect that the Underwriters’ aggregate compensation is in excess of FINRA Rules rules or that the terms thereof require adjustment.
(dv) Whether or not the transactions contemplated by this Agreement, the Registration Statement and the Prospectus are consummated or this Agreement is terminated, the Company hereby agrees to pay all costs and expenses incident to the performance of its obligations hereunder (provided any expenses exceeding $10,000 shall be subject to the Company’s prior written approval), including the following ($35,000 of which has previously been paid by the Company):following:
(i1) all expenses in connection with the preparation, printing, formatting for XXXXX EXXXX and filing of the Registration Statement, any Preliminary Prospectus and the Prospectus and any and all exhibits, amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers;
(ii2) all filing fees and expenses in connection with filings with FINRA’s Public Offering System;
(iii) all fees and expenses in connection with filing of the Registration Statement and Prospectus with the Commission;
(iv3) all fees, disbursements and expenses of the Company’s counsel counsel, accountants and accountants other agents and representatives in connection with the registration of the Securities under the Securities Act and the Offering;
(v4) all reasonable expenses in connection with the qualifications of the Securities for offering and sale under state or foreign securities or blue sky lawslaws (including, including up to $10,000 for without limitation, all filing and registration fees, and the fees and disbursements of Underwriters’ Counsel in connection with such qualification and in connection with any blue sky survey undertaken by such counsel;
(vi5) all fees and expenses in connection with listing the Securities on the Nasdaq Capital Marketa national securities exchange;
(vii6) all reasonable expenses, including travel expenses and lodging expenses, of the Company’s officers officers, directors and employees and any other expense of the Company incurred in connection with attending or hosting meetings with prospective purchasers of the Securities (“Road Show Expenses”)and any fees and expenses associated with the i-Deal system and NetRoadshow;
(viii7) any stock transfer taxes or other taxes incurred in connection with this Agreement or the Offeringoffering, including any stock transfer taxes payable upon the transfer of securities to the Underwriters;
(ix) 8) the cost of preparing costs associated with preparing, printing and delivering certificates representing the Securities;
(x9) the cost and charges of any transfer agent or registrar for the Securities;
(xi10) any reasonable cost and expenses in conducting satisfactory due diligence investigation and analysis of subject to the Company’s officers and directors;
following proviso, other costs (xii) any reasonable expenses and fees incurred by including Underwriters’ Counsel; and
(xiiicounsel’s fees and expenses) all other costs and expenses incident to the performance of the Company obligations hereunder which Offering that are not otherwise specifically provided for in this Section 5.4(k);
(e11) In addition costs relating to the costs and expenses set forth in Section 5(d) above, the Company will be responsible for: (i) the cost of two (2) “tombstone” advertisements to be placed in appropriate daily or weekly periodicals background checks of the RepresentativeCompany’s choice (i.e., The Wall Street Journal officers and The New York Times); and (ii) the cost of leather bound volumes of the Offering documents and Offering commemorative lucite (or other reasonable form) memorabilia, both to be supplied to the Representative, in such quantities as Representative may reasonably request.
(f) It is understood, however, that except as provided in this Section 5, and Sections 7, 8 and 11(d) hereof, the Underwriters will pay all of their own costs and expenses. Notwithstanding anything to the contrary in this Section 5, in the event that this Agreement is terminated pursuant to Section 11(b) hereof, or subsequent to a Material Adverse Change, the Company will pay, less any advances previously paid (the “Advances”), all out-of-pocket expenses of the Underwriters (including but not limited to fees and disbursements of Underwriters’ Counsel and reasonable travel) incurred in connection herewith which shall be limited to expenses which are actually incurred as allowed under FINRA Rule 5110 and the aggregate amount of such expenses to be reimbursed by the Company shall not exceed $100,000.directors;
Appears in 1 contract
Consideration; Payment of Expenses. (a) In consideration of the services to be provided for hereunder, the Company shall pay to the Underwriters Underwriter or their respective designees their pro rata portion (based on the Securities purchased) of the following compensation with respect to the Securities which they are offeringpurchase from the Company in this Offering:
(i) A cash fee payable at Closing an underwriting discount equal to seven and one-half percent (77.5%) of the aggregate gross proceeds raised in the Offering;
(ii) a non-accountable expense allowance of one percent (1.0%) of the gross proceeds of the Offering;
(iii) an accountable expense allowance of up to $150,000, of which $100,000 has already been paid to the Underwriter as an advance against accountable expenses; and
(iiiv) The Representativethe Company shall grant to the Underwriter or its designated affiliates share purchase warrants (the “Underwriter’s Warrants”) covering a number of shares equal to seven and half percent (7.5%) of the total number of Firm and Option Shares sold in this offering.
(b) In compliance with FINRA Rule 5110(e)(1), the Underwriter’s Warrants and the underlying securities will be locked up for 180 beginning on the date of commencement of sales of the Offering and will expire five (5) years after the Effective Date. The Underwriter’s Warrants will be exercisable at a price equal to one hundred and thirty percent (130%) of the public offering price of the underlying Class A Ordinary Shares in connection with the Offering. The Underwriter’s Warrants shall not be redeemable. The Company grants will register the Representative Class A Ordinary Shares underlying the right Underwriter’s Warrants under the Act and will file all necessary undertakings in connection therewith. The Underwriter’s Warrants and the underlying securities shall not be sold during the Offering, or sold, transferred, assigned, pledged, or hypothecated, or be the subject of first refusal any hedging, short sale, derivative, put, or call transaction that would result in the effective economic disposition of the securities by any person for a period of twelve 180 days beginning on the date of commencement of sales of the Offering, except that they may be transferred to any member participating in the Offering and the officers or partners thereof, if all securities so transferred remain subject to the lock-up restriction for the remainder of the time period. The Underwriter’s Warrants may be exercised as to all or a lesser number of the underlying Class A Ordinary Shares, will provide for cashless exercise and will contain provisions for one demand registration of the sale of the underlying Class A Ordinary Share at the Company’s expense, an additional demand registration at the Underwriter’s Warrants holder’s expense, and unlimited “piggyback” registration rights for a period of three (123) months from years after the Effective Date to act as lead managing underwriter and book runner or minimally as a co-lead manager and co-book runner and/or co-lead placement agent with at least 50.0% of the economics; or, Company’s expense. The Underwriter’s Warrants shall further provide for adjustment in the case of a three-handed deal, 33.0% of the economics, for any number and all future equity, equity-linked or debt (excluding commercial bank debt) offerings undertaken by the Company or any subsidiaries of the Company. The Company shall provide written notice to Representative with terms price of such offering warrants (and if Representative fails the Class A Ordinary Share underlying such Warrants) in the event of recapitalization, merger or other structural transaction to accept in writing any such proposal for such public or private sale within 15 days after receipt of a written notice from the Company containing such proposal, then Representative will have no claim or right with respect to any such sale contained in any such noticeprevent dilution.
(c) The Representative Underwriter reserves the right to reduce any item of compensation or adjust the terms thereof as specified herein in the event that a determination shall be made by FINRA to the effect that the UnderwritersUnderwriter’ aggregate compensation is in excess of FINRA Rules or that the terms thereof require adjustment.
(d) Whether or not the transactions contemplated by this Agreement, the Registration Statement and the Prospectus are consummated or this Agreement is terminated, the Company hereby agrees to pay all costs and expenses incident to the performance of its obligations hereunder (provided any expenses exceeding $10,000 shall be subject to the Company’s prior written approval)Offering, including the following ($35,000 of which has previously been paid by the Company):following:
(i) all expenses in connection with the preparation, printing, formatting for XXXXX and filing of the Registration Statement, any Preliminary Prospectus and the Prospectus and any and all amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters Underwriter and dealers;
(ii) all fees and expenses in connection with filings with FINRA’s Public Offering System;
(iii) all fees and expenses in connection with filing of the Registration Statement and Prospectus with the Commission;
(iv) all fees, disbursements and expenses of the Company’s counsel and accountants in connection with the registration of the Securities under the Securities Act and the Offering;
(viv) all reasonable expenses in connection with the qualifications of the Securities for offering and sale under state or foreign securities or blue sky laws, including up to $10,000 for the fees of Underwriters’ Counsel in connection with such qualification and in connection with any blue sky survey undertaken by such counsel;
(viv) all fees and expenses in connection with listing the Securities on the Nasdaq Capital Marketa national securities exchange;
(viivi) all reasonable travel expenses of the Company’s officers officers, directors and employees and any other expense of the Company incurred in connection with attending or hosting meetings with prospective purchasers of the Securities Securities;
(“Road Show Expenses”)vii) all the road show expenses incurred by the Company;
(viii) any stock transfer taxes or other taxes incurred in connection with this Agreement or the Offering;
(ix) the costs associated with book building, prospectus tracking and compliance software and the cost of preparing certificates representing the Securities;
(x) the cost and charges of any transfer agent or registrar for the Securities;
(xi) any reasonable cost costs and expenses incurred in conducting satisfactory due diligence investigation and analysis background checks of the Company’s officers and directorsdirectors by a background search firm acceptable to the Underwriter, not to exceed $15,000;
(xii) any reasonable expenses and fees incurred by Underwriters’ Counsel; and
(xiii) all other costs and expenses incident to the performance of the Company obligations hereunder which are not otherwise specifically provided for in this Section 5.
(e) In addition to the costs and expenses set forth in Section 5(d) above, the Company will be responsible for: (i) the cost of two (2) “tombstone” advertisements to be placed in appropriate daily or weekly periodicals of the Representative’s choice (i.e., The Wall Street Journal and The New York Times); and (ii) the cost of leather associated with bound volumes of the Offering documents and Offering commemorative lucite (or other reasonable form) memorabilia, both to be supplied to the Representative, mementos in such quantities as Representative the Underwriter may reasonably request.
(f) It is understood, however, that except as provided in this Section 5, and Sections 7, 8 and 11(d) hereof, the Underwriters will pay all of their own costs and expenses. Notwithstanding anything not to the contrary in this Section 5, in the event that this Agreement is terminated pursuant to Section 11(b) hereof, or subsequent to a Material Adverse Change, the Company will pay, less any advances previously paid (the “Advances”), all out-of-pocket expenses of the Underwriters (including but not limited to fees and disbursements of Underwriters’ Counsel and reasonable travel) incurred in connection herewith which shall be limited to expenses which are actually incurred as allowed under FINRA Rule 5110 and the aggregate amount of such expenses to be reimbursed by the Company shall not exceed $100,000.2,500; and
Appears in 1 contract
Samples: Underwriting Agreement (Golden Sun Education Group LTD)
Consideration; Payment of Expenses. (a) In consideration of the services to be provided for hereunder, the Company shall pay to the Underwriters or their respective designees their pro rata portion (based on the Securities purchased) of the following compensation with respect to the Securities which they are offering:
(i) A cash fee payable at Closing equal to seven percent (7%) of the aggregate gross proceeds raised in the Offering; and
(ii) The Representative’s Warrants.
(b) The Company grants the Representative the right of first refusal for a period of twelve (12) months from the Effective Date to act as lead managing underwriter and book runner or minimally as a co-lead manager and co-book runner and/or co-lead placement agent with at least 50.0% of the economics; or, in the case of a three-handed deal, 33.0% of the economics, for any and all future equity, equity-linked or debt (excluding commercial bank debt) offerings undertaken by the Company or any subsidiaries of the Company. The Company shall provide written notice to Representative with terms of such offering and if Representative fails to accept in writing any such proposal for such public or private sale within 15 days after receipt of a written notice from the Company containing such proposal, then Representative will have no claim or right with respect to any such sale contained in any such notice.
(c) The Representative reserves the right to reduce any item of compensation or adjust the terms thereof as specified herein in the event that a determination shall be made by FINRA to the effect that the Underwriters’ aggregate compensation is in excess of FINRA Rules or that the terms thereof require adjustment.
(db) Whether At Closing, the Company will reimburse Rxxx Capital Partners, LLC for its out-of-pocket expenses incurred in connection with the purchase and sale of the Securities. In addition, on the Closing Date and Option Closing Date, if applicable, the Company will issue to the Underwriters warrants to purchase a number of Shares equal to 5% of the Firm Shares and Additional Shares, as the case may be. The warrants will have a term of five years, have an exercise price equal to the exercise price of the Firm Warrants, will provide for cashless exercise at all times and, in accordance with FINRA Rule 5110(g)(1), may not be sold, transferred, assigned, pledged or hypothecated, or be the subject of any hedging, short sale, derivative, put or call transaction that would result in the effective economic disposition of such warrant by any person for a period of 180 days immediately following the effective date of the registration statement, except as provided in FINRA Rule 5110(g)(2).
(c) Subject to Section 11(d), whether or not the transactions contemplated by this Agreement, the Registration Statement and the Prospectus are consummated or this Agreement is terminated, the Company hereby agrees to pay all costs and expenses incident to the performance of its obligations hereunder (provided any expenses exceeding $10,000 shall be subject to the Company’s prior written approval)hereunder, including the following ($35,000 of which has previously been paid by the Company):following:
(i) all expenses in connection with the preparation, printing, formatting for XXXXX EXXXX and filing of the Registration Statement, any Preliminary Prospectus Prospectus, General Disclosure Package and the Prospectus and any and all exhibits, amendments and supplements thereto and the mailing and delivering of a sufficient quantity of copies thereof to the Underwriters and dealersdealers as the Representative may reasonably request;
(ii) all fees and expenses in connection with filings with FINRA’s the filing on the FINRA Public Offering System, including the reasonable fees and disbursements of counsel for the Underwriters in connection with such filing;
(iii) all fees and expenses in connection with filing of the Registration Statement and Prospectus with the Commission;
(iv) all the fees, disbursements and expenses of the Company’s counsel and accountants in connection with the registration of the Public Securities under the Securities Act and the Offering;
(v) all reasonable expenses in connection with the qualifications of the Public Securities for offering and sale under state or foreign securities or blue sky laws, including up to $10,000 the fees and disbursements of counsel for the fees of Underwriters’ Counsel Underwriters in connection with such qualification and in connection with any blue sky survey undertaken by such counsel;
(vi) all fees and expenses in connection with listing the Securities on the Nasdaq Capital Market;
(vii) all reasonable travel expenses of the Company’s officers and employees and any other expense of the Company incurred in connection with attending or hosting meetings with prospective purchasers of the Securities (“Road Show Expenses”)Securities;
(viiivii) any stock transfer taxes incurred in connection with this Agreement or the Offering;
(ixviii) the cost of preparing stock certificates representing the Securities;
(xix) the cost and charges of any transfer agent or registrar for the Securities;
(xi) any reasonable cost and expenses in conducting satisfactory due diligence investigation and analysis of the Company’s officers and directors;
(xii) any reasonable expenses and fees incurred by Underwriters’ Counsel; and
(xiiix) all other costs and expenses incident to the performance of the Company obligations hereunder which are not otherwise specifically provided for in this Section 5.; and
(exi) In addition to the costs and expenses set forth in Section 5(d) above, the Company will be responsible for: (i) the cost of two (2) “tombstone” advertisements to be placed in appropriate daily or weekly periodicals of the Representative’s choice (i.e., The Wall Street Journal and The New York Times); and (ii) the cost of leather bound volumes of the Offering documents and Offering commemorative lucite (or other reasonable form) memorabilia, both to be supplied to the Representative, in such quantities as Representative may reasonably request.
(f) It is understood, however, that except as provided in this Section 5, and Sections 7, 8 and 11(d) hereof, the Underwriters will pay all of their own costs and expenses. Notwithstanding anything to the contrary in this Section 5, in the event that this Agreement is terminated pursuant to Section 11(b) hereof, or subsequent to a Material Adverse Change, the Company will pay, less any advances previously paid (the “Advances”), all out-of-pocket expenses of incurred by the Underwriters (including but not limited to fees and disbursements of Underwriters’ Counsel and reasonable travel) incurred in connection herewith which shall be limited with the Offering, including the cost of counsel for the Underwriters, up to expenses which are actually incurred as allowed under FINRA Rule 5110 and the an aggregate amount of such expenses to be reimbursed by the Company shall not exceed $100,000125,000.
Appears in 1 contract
Samples: Underwriting Agreement (Enerpulse Technologies, Inc.)
Consideration; Payment of Expenses. (a) In consideration of the services to be provided for hereunder, the Company shall pay to the Underwriters or their respective designees their pro rata portion (based on the Securities purchased) of the following compensation with respect to the Securities which they are offering:
(i) A cash fee payable at Closing equal to seven percent (7%) of the aggregate gross proceeds raised in the Offering; and
(ii) The Representative’s Warrants.
(b) The If the Offering is in an amount of at least $20 million of gross proceeds and is based on a pre-money valuation of the Company of at least $80 million (on a fully diluted basis (including all ordinary shares, options, warrants and convertible securities on an as-exercised or as-converted basis, as the case may be)), the Company grants the Representative the right of first refusal for a period of twelve (12) months from the Effective Date to act as lead managing underwriter and book runner manager or minimally as a co-lead manager and co-book runner and/or co-lead placement agent with at least 50.0% of the economics; or, in the case of a three-handed deal, 33.020.0% of the economics, for any and all future equity, equity-linked or debt (excluding commercial bank debt) equity offerings undertaken by the Company or any subsidiaries of the CompanyCompany during the twelve (12) month period following the Closing Date. The Company shall provide written notice to Representative with terms of such offering and if Representative fails to accept in writing any such proposal for such public or private sale within 15 days after receipt of a written notice from the Company containing such proposal, then Representative will have no claim or right with respect to any such sale contained in any such notice. The above provision shall not be applicable to a financing solicited from a person or entity which is a current holder of the Company’s debt or equity securities.
(c) The Representative reserves the right after informing the Company to reduce any item of compensation or adjust the terms thereof as specified herein in the event that a determination shall be made by FINRA to the effect that the Underwriters’ aggregate compensation is in excess of FINRA Rules or that the terms thereof require adjustment.
(d) Whether or not the transactions contemplated by this Agreement, the Registration Statement and the Prospectus are consummated or this Agreement is terminated, the Company hereby agrees to pay all costs and expenses incident to the performance of its obligations hereunder (provided any expenses exceeding $10,000 shall be subject to the Company’s prior written approval), including the following ($35,000 of which has previously been paid by the Company):following:
(i) all expenses in connection with the preparation, printing, formatting for XXXXX and filing of the Registration Statement, any Preliminary Prospectus and the Prospectus and any and all amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers;
(ii) all fees and expenses in connection with filings with FINRA’s Public Offering System;
(iii) all fees and expenses in connection with filing of the Registration Statement and Prospectus with the Commission;
(iv) all fees, disbursements and expenses of the Company’s counsel and accountants in connection with the registration of the Securities under the Securities Act and the Offering;
(viv) if the Offering is commenced on the Over the Counter Bulletin Board, all reasonable expenses in connection with the qualifications of the Securities for offering and sale under state or foreign securities or blue sky laws, including up to an initial payment of $10,000 15,000 for the fees of Underwriters’ Counsel in connection with such qualification and in connection with any blue sky survey undertaken by such counsel, with the balance of such Underwrtiers’ Counsel’s fees to be due at the closing of the Offering subject to a maximum of $25,000, excluding the initial $15,000 payment;
(viv) if the Offering is commenced on the Nasdaq Capital Market, NYSE or NYSE AMEX, all fees and expenses in connection with listing the Securities on the Nasdaq Capital Marketsuch market, including a one-time payment to Underwriter’s counsel of $5,000 in connection with such listing;
(viivi) all reasonable travel expenses of the Company’s officers and employees and any other expense of the Company incurred in connection with attending or hosting meetings with prospective purchasers of the Securities (“Road Show Expenses”);
(viiivii) any stock transfer taxes or other taxes incurred in connection with this Agreement or the Offering;
(ixviii) the costs associated with book building, prospectus tracking and compliance software and the cost of preparing certificates representing the Securities;
(xix) the cost and charges of any transfer agent or registrar for the Securities;
(xix) any reasonable cost and expenses in conducting satisfactory due diligence investigation and analysis background checks of the Company’s officers and directorsdirectors by a background search firm acceptable to the Representative;
(xiixi) any reasonable expenses and fees incurred by Underwriters’ Counsel, $25,000 of which has already been paid; and
(xiiixii) all other costs costs, fees (including Underwriters’ Counsel’s fees) and expenses incident to the performance of the Company obligations hereunder which are not otherwise specifically provided for in this Section 5; provided, however, that all such costs and expenses pursuant to this Section 5(d) and otherwise which are incurred by the underwriters shall not to exceed $100,000 in the aggregate, including the $25,000 advance against Underwriters’ Counsel’s fees described in Section 5(d)(xi) above.
(e) In addition to the costs and expenses set forth in Section 5(d) above, the Company will be responsible for: (i) the cost of two (2) “tombstone” advertisements to be placed in appropriate daily or weekly periodicals of the Representative’s choice (i.e., The Wall Street Journal and The New York Times); and (ii) the cost of leather bound volumes of the Offering documents and Offering commemorative lucite (or other reasonable form) memorabilia, both to be supplied to the Representative, in such quantities as Representative may reasonably request.
(f) It is understood, however, that except as provided in this Section 5, and Sections 7, 8 and 11(d) hereof, the Underwriters will pay all of their own costs and expenses. Notwithstanding anything to the contrary in this Section 5, in the event that this Agreement is terminated pursuant to Section 11(b) hereof, or subsequent to a Material Adverse Change, the Company will pay, less any advances previously paid (the “Advances”), all out-of-pocket expenses of the Underwriters (including but not limited to fees and disbursements of Underwriters’ Counsel and reasonable travel) incurred in connection herewith which shall be limited to expenses which are actually incurred as allowed under FINRA Rule 5110 and in any event, the aggregate amount of such expenses to be reimbursed by the Company shall not exceed $100,000, including the $25,000 advance against fees to Underwriters’ Counsel (as described in Section 5(d)).
Appears in 1 contract
Samples: Underwriting Agreement (Galmed Pharmaceuticals Ltd.)
Consideration; Payment of Expenses. (a) In consideration of the services to be provided for hereunder, the Company shall pay to the Underwriters or their respective designees their pro rata portion (based on the Securities purchased) of the following compensation with respect to the Securities Shares which they are offering:
(i) A cash fee payable at Closing equal to seven An underwriting discount of eight percent (78%) of the aggregate gross proceeds raised in the Offering; and
(ii) The Representative’s Warrants).
(b) The Company grants the Representative the right of first refusal participation to act as lead underwriter or placement agent for a period of twelve twenty-four (1224) months from the Effective Date to act as lead managing underwriter and book runner or minimally as a co-lead manager and co-book runner and/or co-lead placement agent with at least 50.0% of the economics; or, in the case of a three-handed deal, 33.0% of the economicsClosing Date, for any and all future equitypublic and private equity and debt offerings, equity-linked or debt (excluding commercial ordinary course of business financings such as bank debt) offerings undertaken lines of credit, accounts receivable, factoring and financing generated by the Company or any subsidiaries successor to or any subsidiary of the Company. The Company shall provide written notice to Representative with terms of such offering and if Representative fails to accept in writing any such proposal for such public or private sale within 15 20 days after receipt of a written notice from the Company containing such proposal, then Representative will have no claim or right with respect to any such sale contained in any such notice.
(c) The Representative reserves the right to reduce any item of compensation or adjust the terms thereof as specified herein in the event that a determination shall be made by FINRA to the effect that the Underwriters’ aggregate compensation is in excess of FINRA Rules or that the terms thereof require adjustment.
(d) Whether or not the transactions contemplated by this Agreement, the Registration Statement and the Prospectus are consummated or this Agreement is terminated, the Company hereby agrees to pay all costs and expenses incident to the performance of its obligations hereunder (provided any expenses exceeding $10,000 shall be subject to the Company’s prior written approval)hereunder, including the following ($35,000 of which has previously been paid by the Company):following:
(i) all expenses in connection with the preparation, printing, formatting for XXXXX EXXXX and filing of the Registration Statement, any Preliminary Prospectus and the Prospectus and any and all amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers;
(ii) all fees and expenses in connection with the filing of Corporate Offerings Business & Regulatory Analysis (“COBRADesk”) filings with FINRA’s Public Offering System;
(iii) all fees and expenses in connection with filing of the Registration Statement and Prospectus with the Commission;
(iv) all the fees, disbursements and expenses of the Company’s counsel and accountants in connection with the registration of the Securities under the Securities Act and the Offering;
(v) all reasonable expenses in connection with the qualifications of the Securities for offering and sale under state or foreign securities or blue sky laws, including up to $10,000 for the fees of Underwriters’ Counsel in connection with such qualification and in connection with any blue sky survey undertaken by such counsel;
(vi) all fees and expenses in connection with listing the Securities on the Nasdaq Capital MarketNYSE Amex;
(vi) [Intentionally Omitted];
(vii) all reasonable travel expenses of the Company’s officers and employees and any other expense of the Company incurred in connection with attending or hosting meetings with prospective purchasers of the Securities (“Road Show Expenses”);
(viii) any stock transfer taxes incurred in connection with this Agreement or the Offering;
(ixviii) the cost of preparing stock certificates representing the Securities;
(ix) [Intentionally Omitted]
(x) the cost and charges of any transfer agent or registrar for the Securities;
(xia) any reasonable cost and expenses in conducting satisfactory due diligence investigation and analysis of the Company’s officers and directors;
(xii) any reasonable expenses and fees incurred by Underwriters’ Counsel; and
(xiii) all other costs and expenses incident to the performance of the Company obligations hereunder which are not otherwise specifically provided for in this Section 5.
(e) In addition to the costs and expenses set forth in Section 5(d) above, the Company will be responsible for: (i) the cost of two (2) “tombstone” advertisements to be placed in appropriate daily or weekly periodicals of the Representative’s choice (i.e., The Wall Street Journal and The New York Times); and (iib) the cost of leather as many bound volumes of the Offering documents and Offering commemorative lucite (or other reasonable form) memorabilia, both to be supplied to memorabilia as the Representative, in such quantities as Representative may reasonably request.
(f) It is understood, however, that except as provided in this Section 5, and Sections 7, 8 and 11(d) hereof, the Underwriters will pay all of their own costs and expenses. Notwithstanding anything to the contrary in this Section 5, in the event that this Agreement is terminated pursuant to Section 11(b) hereof, or subsequent to a Material Adverse Change, the Company will pay, less any advances previously paid (the “Advances”), all out-of-pocket expenses of the Underwriters (including but not limited to fees and disbursements of Underwriters’ Counsel and reasonable travel) incurred in connection herewith which shall be limited to expenses which are actually incurred as allowed under FINRA Rule 5110 and the aggregate amount of such expenses to be reimbursed by the Company shall not exceed $100,000.;
Appears in 1 contract
Consideration; Payment of Expenses. (a) In consideration of the services to be provided for hereunder, the Company shall pay to the Underwriters or their respective designees their pro rata portion (based on the Securities purchased) of the following aggregate compensation with respect to the Offered Securities which they are offering:offering plus any other funds remitted by the Company to pay costs and expenses that are incurred by the Underwriters (including Underwriters’ counsel’s fees and expenses) (“Additional Advanced Amounts”).
(i) A cash fee payable at Closing An underwriting discount equal to seven percent (7%) of the aggregate gross proceeds raised in the Offering; and;
(ii) The Representative’s Underwriters’ Warrants.; and
(biii) The Additionally, if the Closing occurs, the Company grants the Representative underwriters the right of first refusal for a period of twelve six (126) months from the Effective Date date of commencement of sales pursuant to the Prospectus to act as lead managing underwriter and book runner or minimally as a co-lead manager left book runners and co-book runner lead left managers and/or co-lead left placement agent agents, with at least 50.075% of the economics; or, in economics (which shall be allocated equally between the case joint book runners if both joint book runners exercise their right of a three-handed deal, 33.0% of the economics, first refusal) for any and all future public or private equity, equity-linked or debt (excluding commercial bank debt) offerings undertaken by the Company Company, or any subsidiaries successor to or any subsidiary of the Company. The Company shall provide written notice to the Representative with the terms of such offering and if the Representative fails to accept in writing any such proposal for such public or private sale within 15 ten (10) business days after receipt of a such written notice from the Company containing such proposalnotice, then the Representative will have no claim or right with respect to any such sale contained in any such noticeoffering(s).
(civ) The Representative reserves the right to reduce any item of compensation or adjust the terms thereof as specified herein in the event that a determination shall be made by FINRA to the effect that the Underwriters’ aggregate compensation is in excess of FINRA Rules rules or that the terms thereof require adjustment.
(dv) Whether or not the transactions contemplated by this Agreement, the Registration Statement and the Prospectus are consummated or this Agreement is terminated, the Company hereby agrees to pay all costs and expenses incident to the performance of its obligations hereunder (provided any expenses exceeding $10,000 shall be subject to the Company’s prior written approval), including the following ($35,000 of which has previously been paid by the Company):following:
(i1) all expenses in connection with the preparation, printing, formatting for XXXXX EXXXX and filing of the Registration Statement, any Preliminary Prospectus and the Prospectus and any and all exhibits, amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers;
(ii2) all filing fees and expenses in connection with filings with FINRA’s Public Offering System;
(iii) all fees and expenses in connection with filing of the Registration Statement and Prospectus with the Commission;
(iv3) all fees, disbursements and expenses of the Company’s counsel counsel, accountants and accountants other agents and representatives in connection with the registration of the Securities under the Securities Act and the Offering;
(v4) all reasonable expenses in connection with the qualifications of the Securities for offering and sale under state or foreign securities or blue sky lawslaws (including, including up to $10,000 for without limitation, all filing and registration fees, and the fees and disbursements of Underwriters’ Counsel in connection with such qualification and in connection with any blue sky survey undertaken by such counsel);
(vi5) all fees and expenses in connection with listing the Securities on the Nasdaq Capital Marketa national securities exchange;
(vii6) all reasonable expenses, including travel expenses and lodging expenses, of the Company’s officers officers, directors and employees and any other expense of the Company incurred in connection with attending or hosting meetings with prospective purchasers of the Securities (“Road Show Expenses”)and any fees and expenses associated with the i-Deal system and NetRoadshow;
(viii7) any stock transfer taxes or other taxes incurred in connection with this Agreement or the Offeringoffering, including any stock transfer taxes payable upon the transfer of securities to the Underwriters;
(ix) 8) the cost of preparing costs associated with preparing, printing and delivering certificates representing the Securities;
(x9) the cost and charges of any transfer agent or registrar for the Securities;
(xi10) any reasonable cost and expenses in conducting satisfactory due diligence investigation and analysis of subject to the Company’s officers and directors;
following proviso, other costs (xii) any reasonable expenses and fees incurred by including Underwriters’ Counsel; and
(xiiicounsel’s fees and expenses) all other costs and expenses incident to the performance of the Company obligations hereunder which Offering that are not otherwise specifically provided for in this Section 5.4(k);
(e11) In addition costs relating to the costs and expenses set forth in Section 5(d) above, the Company will be responsible for: (i) the cost of two (2) “tombstone” advertisements to be placed in appropriate daily or weekly periodicals background checks of the RepresentativeCompany’s choice (i.e., The Wall Street Journal officers and The New York Times)directors; and (ii) the cost of leather bound volumes of the Offering documents and Offering commemorative lucite (or other reasonable form) memorabilia, both to be supplied to the Representative, in such quantities as Representative may reasonably request.
(f) It is understoodprovided, however, that except as provided in this Section 5, all such costs and Sections 7, 8 expenses (including Underwriters’ counsel’s fees and 11(dexpenses) hereof, that are incurred by the Underwriters will pay all of their own costs and expenses. Notwithstanding anything to the contrary in this Section 5, in the event that this Agreement is terminated pursuant to Section 11(b) hereof, or subsequent to a Material Adverse Change, the Company will pay, less any advances previously paid (the “Advances”), all out-of-pocket expenses of the Underwriters (including but not limited to fees and disbursements of Underwriters’ Counsel and reasonable travel) incurred in connection herewith which shall be limited to expenses which are actually incurred as allowed under FINRA Rule 5110 and the aggregate amount of such expenses to be reimbursed by the Company shall not exceed $100,000100,000 in the aggregate.
Appears in 1 contract
Consideration; Payment of Expenses. (a) In consideration of the services to be provided for hereunder, the Company shall pay to the Underwriters or their respective designees their pro rata portion (based on the Securities purchased) of the following compensation with respect to the Securities which they are offering:
(i) A cash fee payable at Closing equal to seven An underwriting discount of eight percent (78%) of the aggregate gross proceeds raised in the OfferingOffering from new investors; and
(ii) The Representative’s Underwriters’ Warrants.
(b) The Company grants Effective upon the Representative the right of first refusal Closing, for a period of twelve (12) months from the Effective Date Closing Date, the Company grants the Representative the right of first refusal to act as lead managing underwriter and book runner or minimally as a co-lead manager and co-book runner and/or co-lead placement agent with at least 50.0% of the economics; or, in the case of a three-handed deal, 33.0% of the economics, for any and all future public equity, equity-linked or debt (excluding commercial bank debt) offerings (each a “Future Financing”) undertaken by the Company or any subsidiaries direct or indirect subsidiary of the Company; provided, however, that such right shall not apply to any so-called "PIPE" offering, private placement, debt transaction, merger & acquisition related activity or preferred equity offering in connection with any strategic partnership, joint venture or collaboration or similar transaction. The Company shall provide written notice to the Representative with the terms of such offering and if the Representative fails to accept in writing any such proposal for such public or private sale within 15 ten (10) days after receipt of a such written notice from the Company containing such proposalnotice, then the Representative will have no claim or right with respect to any such sale contained offering. Notwithstanding anything to the contrary in any the foregoing, Representative hereby agrees to irrevocably waive such noticeright in consideration of a fee paid to it by the Company in an amount equal to the greater of 1% of the aggregate size of the Offering or $200,000.
(c) The Representative reserves the right to reduce any item of compensation or adjust the terms thereof as specified herein in the event that a determination shall be made by FINRA to the effect that the Underwriters’ aggregate compensation is in excess of FINRA Rules or that the terms thereof require adjustment.
(d) Whether or not the transactions contemplated by this Agreement, the Registration Statement and the Prospectus are consummated or this Agreement is terminated, the Company hereby agrees to pay all costs and expenses incident to the performance of its obligations hereunder (provided any expenses exceeding $10,000 shall be subject to the Company’s prior written approval)Offering, including the following ($35,000 of which has previously been paid by the Company):following:
(i) all expenses in connection with the preparation, printing, formatting for XXXXX EXXXX and filing of the Registration Statement, any Preliminary Prospectus and the Prospectus and any and all amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers;
(ii) all fees and expenses in connection with filings with FINRA’s Public Offering System;
(iii) all fees and expenses in connection with filing of the Registration Statement and Prospectus with the Commission;
(iv) all fees, disbursements and expenses of the Company’s counsel and accountants in connection with the registration of the Securities under the Securities Act and the Offering;
(viv) all reasonable and actual expenses in connection with the qualifications of the Securities for offering and sale under state or foreign securities or blue sky laws, including up to $10,000 for the fees of Underwriters’ Counsel in connection with such qualification and in connection with any blue sky survey undertaken by such counsel;
(viv) all fees and expenses in connection with listing the Securities on the Nasdaq Capital Marketa national securities exchange;
(viivi) all reasonable travel expenses of the Company’s officers officers, directors and employees and any other expense of the Company or the Underwriters incurred in connection with attending or hosting meetings with prospective purchasers of the Securities (“Road Show Expenses”);
(viiivii) any stock transfer taxes or other taxes incurred in connection with this Agreement or the Offering;
(ixviii) the costs associated with book building, prospectus tracking and compliance software and the cost of preparing certificates representing the Securities;
(xix) the cost and charges of any transfer agent or registrar for the Securities;
(xix) any reasonable cost costs and expenses incurred in conducting satisfactory due diligence investigation and analysis background checks of the Company’s officers and directorsdirectors by a background search firm acceptable to the Representative;
(xii) any reasonable expenses and fees incurred by Underwriters’ Counsel; and
(xiii) all other costs and expenses incident to the performance of the Company obligations hereunder which are not otherwise specifically provided for in this Section 5.
(e) In addition to the costs and expenses set forth in Section 5(d) above, the Company will be responsible for: (ixi) the cost of two (2) “tombstone” advertisements to be placed in appropriate daily or weekly periodicals of the Representative’s choice (i.e., The Wall Street Journal and The New York Times); and (ii) the cost of leather bound volumes of the Offering documents and Offering commemorative lucite (or other reasonable form) memorabilia, both to be supplied to the Representative, in such quantities as Representative may reasonably request.
(f) It is understood, however, that except as provided in this Section 5, and Sections 7, 8 and 11(d) hereof, the Underwriters will pay all of their own costs and expenses. Notwithstanding anything to the contrary in this Section 5, in the event that this Agreement is terminated pursuant to Section 11(b) hereof, or subsequent to a Material Adverse Change, the Company will pay, less any advances previously paid (the “Advances”), all out-of-pocket expenses of the Underwriters (including but not limited to fees and disbursements of Underwriters’ Counsel and reasonable travel) incurred in connection herewith which shall be limited to expenses which are actually incurred as allowed under FINRA Rule 5110 and the aggregate amount of such expenses to be reimbursed by the Company shall not exceed $100,000.;
Appears in 1 contract
Consideration; Payment of Expenses. (a) In consideration of the services to be provided for hereunder, the Company shall pay to the Underwriters or their respective designees their pro rata portion (based on the Securities purchased) of the following compensation with respect to the Securities which they are offering:
(i) A cash fee payable at Closing equal to seven percent (7%) of the aggregate gross proceeds raised in the Offering; and
(ii) The Representative’s Warrants.
(b) The Company grants the Representative the right of first refusal for a period of twelve twwelve (12) months from the Effective Closing Date to act as lead managing underwriter and book runner or minimally as a co-lead manager and co-book runner and/or co-lead placement agent with at least 50.0% of the economics; or, in the case of a three-handed deal, 33.0% of the economics, for any and all future equity, equity-linked or debt (excluding commercial bank debt) offerings undertaken by the Company or any subsidiaries subsidiary of the Company. The Company shall provide written notice to Representative with terms of such offering and if Representative fails to accept in writing any such proposal for such public or private sale within 15 days after receipt of a written notice from the Company containing such proposal, then Representative will have no claim or right with respect to any such sale contained in any such notice.
(c) The Representative reserves the right to reduce any item of compensation or adjust the terms thereof as specified herein in the event that a determination shall be made by FINRA to the effect that the Underwriters’ aggregate compensation is in excess of FINRA Rules or that the terms thereof require adjustment.
(d) Whether or not the transactions contemplated by this Agreement, the Registration Statement and the Prospectus are consummated or this Agreement is terminated, the Company hereby agrees to pay all costs and expenses incident to the performance of its obligations hereunder (provided any expenses exceeding $10,000 shall be subject to the Company’s prior written approval), including the following ($35,000 of which has previously been paid by the Company):
(i) all expenses in connection with the preparation, printing, formatting for XXXXX and filing of the Registration Statement, any Preliminary Prospectus and the Prospectus and any and all amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers;
(ii) all fees and expenses in connection with filings with FINRA’s Public Offering System;
(iii) all fees and expenses in connection with filing of the Registration Statement and Prospectus with the Commission;
(iv) all fees, disbursements and expenses of the Company’s counsel and accountants in connection with the registration of the Securities under the Securities Act and the Offering;
(v) all reasonable expenses in connection with the qualifications of the Securities for offering and sale under state or foreign securities or blue sky laws, including up to $10,000 for the fees of Underwriters’ Counsel in connection with such qualification and in connection with any blue sky survey undertaken by such counsel;
(vi) all fees and expenses in connection with listing the Securities on the Nasdaq Capital Market;
(vii) all reasonable travel expenses of the Company’s officers and employees and any other expense of the Company incurred in connection with attending or hosting meetings with prospective purchasers of the Securities (“Road Show Expenses”);
(viii) any stock transfer taxes incurred in connection with this Agreement or the Offering;
(ix) the cost of preparing certificates representing the Securities;
(x) the cost and charges of any transfer agent or registrar for the Securities;
(xi) any reasonable cost and expenses in conducting satisfactory due diligence investigation and analysis of the Company’s officers and directors;
(xii) any reasonable expenses and fees incurred by Underwriters’ Counsel; and
(xiii) all other costs and expenses incident to the performance of the Company obligations hereunder which are not otherwise specifically provided for in this Section 5.
(e) In addition to the costs and expenses set forth in Section 5(d) above, the Company will be responsible for: (i) the cost of two (2) “tombstone” advertisements to be placed in appropriate daily or weekly periodicals of the Representative’s choice (i.e., The Wall Street Journal and The New York Times); and (ii) the cost of leather bound volumes of the Offering documents and Offering commemorative lucite (or other reasonable form) memorabilia, both to be supplied to the Representative, in such quantities as Representative may reasonably request.
(f) It is understood, however, that except as provided in this Section 5, and Sections 7, 8 and 11(d) hereof, the Underwriters will pay all of their own costs and expenses. Notwithstanding anything to the contrary in this Section 5, in the event that this Agreement is terminated pursuant to Section 11(b) hereof, or subsequent to a Material Adverse Change, the Company will pay, less any advances previously paid (the “Advances”), all out-of-pocket expenses of the Underwriters (including but not limited to fees and disbursements of Underwriters’ Counsel and reasonable travel) incurred in connection herewith which shall be limited to expenses which are actually incurred as allowed under FINRA Rule 5110 and the aggregate amount of such expenses to be reimbursed by the Company shall not exceed $100,0005110.
Appears in 1 contract
Samples: Underwriting Agreement (Good Times Restaurants Inc)
Consideration; Payment of Expenses. (a) In consideration of the services to be provided for hereunder, the Company shall pay to the Underwriters or their respective designees their pro rata portion (based on the Securities purchased) of the following compensation with respect to the Securities Shares which they are offering:
(i) A cash fee payable at Closing equal to seven An underwriting discount of eight percent (78%) of the aggregate gross proceeds raised in the Offering; and
(ii) The Representative’s Warrants).
(b) The Company grants the Representative the right of first refusal participation to act as lead underwriter or placement agent for a period of twelve twenty-four (1224) months from the Effective Date to act as lead managing underwriter and book runner or minimally as a co-lead manager and co-book runner and/or co-lead placement agent with at least 50.0% of the economics; or, in the case of a three-handed deal, 33.0% of the economicsClosing Date, for any and all future equitypublic and private equity and debt offerings, equity-linked or debt (excluding commercial ordinary course of business financings such as bank debt) offerings undertaken lines of credit, accounts receivable, factoring and financing generated by the Company or any subsidiaries successor to or any subsidiary of the Company. The Company shall provide written notice to Representative with terms of such offering and if Representative fails to accept in writing any such proposal for such public or private sale within 15 20 days after receipt of a written notice from the Company containing such proposal, then Representative will have no claim or right with respect to any such sale contained in any such notice.. [Pending discussion with Maxim]
(c) The Representative reserves the right to reduce any item of compensation or adjust the terms thereof as specified herein in the event that a determination shall be made by FINRA to the effect that the Underwriters’ aggregate compensation is in excess of FINRA Rules or that the terms thereof require adjustment.
(d) Whether or not the transactions contemplated by this Agreement, the Registration Statement and the Prospectus are consummated or this Agreement is terminated, the Company hereby agrees to pay all costs and expenses incident to the performance of its obligations hereunder (provided any expenses exceeding $10,000 shall be subject to the Company’s prior written approval)hereunder, including the following ($35,000 of which has previously been paid by the Company):following:
(i) all expenses in connection with the preparation, printing, formatting for XXXXX and filing of the Registration Statement, any Preliminary Prospectus and the Prospectus and any and all amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers;
(ii) all fees and expenses in connection with the filing of Corporate Offerings Business & Regulatory Analysis (“COBRADesk”) filings with FINRA’s Public Offering System;
(iii) all fees and expenses in connection with filing of the Registration Statement and Prospectus with the Commission;
(iv) all the fees, disbursements and expenses of the Company’s counsel and accountants in connection with the registration of the Securities under the Securities Act and the Offering;
(v) all reasonable expenses in connection with the qualifications of the Securities for offering and sale under state or foreign securities or blue sky laws, including up to $10,000 for the fees of Underwriters’ Counsel in connection with such qualification and in connection with any blue sky survey undertaken by such counsel;
(vi) all fees and expenses in connection with listing the Securities on the Nasdaq Capital MarketNYSE Amex;
(vi) [Intentionally Omitted];
(vii) all reasonable travel expenses of the Company’s officers and employees and any other expense of the Company incurred in connection with attending or hosting meetings with prospective purchasers of the Securities (“Road Show Expenses”);
(viii) any stock transfer taxes incurred in connection with this Agreement or the Offering;
(ixviii) the cost of preparing stock certificates representing the Securities;
(ix) [Intentionally Omitted]
(x) the cost and charges of any transfer agent or registrar for the Securities;
(xia) any reasonable cost and expenses in conducting satisfactory due diligence investigation and analysis of the Company’s officers and directors;
(xii) any reasonable expenses and fees incurred by Underwriters’ Counsel; and
(xiii) all other costs and expenses incident to the performance of the Company obligations hereunder which are not otherwise specifically provided for in this Section 5.
(e) In addition to the costs and expenses set forth in Section 5(d) above, the Company will be responsible for: (i) the cost of two (2) “tombstone” advertisements to be placed in appropriate daily or weekly periodicals of the Representative’s choice (i.e., The Wall Street Journal and The New York Times); and (iib) the cost of leather as many bound volumes of the Offering documents and Offering commemorative lucite (or other reasonable form) memorabilia, both to be supplied to memorabilia as the Representative, in such quantities as Representative may reasonably request.
(f) It is understood, however, that except as provided in this Section 5, and Sections 7, 8 and 11(d) hereof, the Underwriters will pay all of their own costs and expenses. Notwithstanding anything to the contrary in this Section 5, in the event that this Agreement is terminated pursuant to Section 11(b) hereof, or subsequent to a Material Adverse Change, the Company will pay, less any advances previously paid (the “Advances”), all out-of-pocket expenses of the Underwriters (including but not limited to fees and disbursements of Underwriters’ Counsel and reasonable travel) incurred in connection herewith which shall be limited to expenses which are actually incurred as allowed under FINRA Rule 5110 and the aggregate amount of such expenses to be reimbursed by the Company shall not exceed $100,000.;
Appears in 1 contract
Consideration; Payment of Expenses. (a) In consideration of the services to be provided for hereunder, the Company shall pay to the Underwriters or their respective designees their pro rata portion (based on the Offered Securities purchased) of the following aggregate compensation with respect to the Offered Securities which they are offering:offering plus any other funds remitted by the Company to pay costs and expenses that are incurred by the Underwriters (including Underwriters’ counsel’s fees and expenses) (“Additional Advanced Amounts”).
(i) A cash fee payable at Closing An underwriting discount equal to seven eight percent (78%) of the aggregate gross proceeds raised in the Offering; and;
(ii) The Representative’s Underwriters’ Warrants.; and
(biii) The Additionally, if the Closing occurs, the Company grants the Representative the right of first refusal for a period of twelve (12) 18 months from the Effective Date date of commencement of sales pursuant to the Prospectus to act as lead sole managing underwriter and sole book runner or minimally as a co-lead manager and co-book runner and/or co-lead placement agent with at least 50.0% of the economics; or, in the case of a three-handed deal, 33.0% of the economics, for any and all future public or private equity, equity-linked or debt (excluding commercial bank debt) offerings undertaken by the Company Company, or any subsidiaries successor to or any subsidiary of the Company. The Company shall provide written notice to the Representative with the terms of such offering and if the Representative fails to accept in writing any such proposal for such public or private sale within 15 ten business days after receipt of a such written notice from the Company containing such proposalnotice, then the Representative will have no claim or right with respect to any such sale contained in any such noticeoffering(s).
(civ) The Representative reserves the right to reduce any item of compensation or adjust the terms thereof as specified herein in the event that a determination shall be made by FINRA to the effect that the Underwriters’ aggregate compensation is in excess of FINRA Rules rules or that the terms thereof require adjustment.
(dv) Whether or not the transactions contemplated by this Agreement, the Registration Statement and the Prospectus are consummated or this Agreement is terminated, the Company hereby agrees to pay all costs and expenses incident to the performance of its obligations hereunder (provided any expenses exceeding $10,000 shall be subject to the Company’s prior written approval), including the following ($35,000 of which has previously been paid by the Company):following:
(i1) all expenses in connection with the preparation, printing, formatting for XXXXX EXXXX and filing of the Registration Statement, any Preliminary Prospectus and the Prospectus and any and all exhibits, amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers;
(ii2) all filing fees and expenses in connection with filings with FINRA’s Public Offering System;
(iii) all fees and expenses in connection with filing of the Registration Statement and Prospectus with the Commission;
(iv3) all fees, disbursements and expenses of the Company’s counsel counsel, accountants and accountants other agents and representatives in connection with the registration of the Offered Securities under the Securities Act and the Offering;
(v4) all reasonable expenses in connection with the qualifications of the Offered Securities for offering and sale under state or foreign securities or blue sky lawslaws (including, including up to $10,000 for without limitation, all filing and registration fees, and the fees and disbursements of Underwriters’ Counsel in connection with such qualification and in connection with any blue sky survey undertaken by such counsel;
(vi5) all fees and expenses in connection with listing the Offered Securities on the Nasdaq Capital Marketa national securities exchange;
(vii6) all reasonable expenses, including travel expenses and lodging expenses, of the Company’s officers officers, directors and employees and any other expense of the Company incurred in connection with attending or hosting meetings with prospective purchasers of the Offered Securities (“Road Show Expenses”)and any fees and expenses associated with the i-Deal system and NetRoadshow;
(viii7) any stock transfer taxes or other taxes incurred in connection with this Agreement or the Offeringoffering, including any stock transfer taxes payable upon the transfer of securities to the Underwriters;
(ix) 8) the cost of preparing costs associated with preparing, printing and delivering certificates representing the Offered Securities;
(x9) the cost and charges of any transfer agent or registrar for the Offered Securities;
(xi10) any reasonable cost and expenses in conducting satisfactory due diligence investigation and analysis of subject to the Company’s officers and directors;
following proviso, other costs (xii) any reasonable expenses and fees incurred by including Underwriters’ Counsel; and
(xiiicounsel’s fees and expenses) all other costs and expenses incident to the performance of the Company obligations hereunder which Offering that are not otherwise specifically provided for in this Section 5.4(k);
(e11) In addition costs relating to the costs and expenses set forth in Section 5(d) above, the Company will be responsible for: (i) the cost of two (2) “tombstone” advertisements to be placed in appropriate daily or weekly periodicals background checks of the RepresentativeCompany’s choice (i.e., The Wall Street Journal officers and The New York Times)directors; and (ii) the cost of leather bound volumes of the Offering documents and Offering commemorative lucite (or other reasonable form) memorabilia, both to be supplied to the Representative, in such quantities as Representative may reasonably request.
(f) It is understoodprovided, however, that except as provided in this Section 5, all such costs and Sections 7, 8 expenses (including Underwriters’ counsel’s fees and 11(dexpenses) hereof, that are incurred by the Underwriters will pay all of their own costs and expenses. Notwithstanding anything to the contrary in this Section 5, in the event that this Agreement is terminated pursuant to Section 11(b) hereof, or subsequent to a Material Adverse Change, the Company will pay, less any advances previously paid (the “Advances”), all out-of-pocket expenses of the Underwriters (including but not limited to fees and disbursements of Underwriters’ Counsel and reasonable travel) incurred in connection herewith which shall be limited to expenses which are actually incurred as allowed under FINRA Rule 5110 and the aggregate amount of such expenses to be reimbursed by the Company shall not exceed $100,000110,000 in the aggregate.
Appears in 1 contract
Consideration; Payment of Expenses. (a) In consideration of the services to be provided for hereunder, the Company shall pay and/or issue to the Underwriters Representative or the Underwriters, as the case may be, or their respective designees their pro rata portion (based on the Securities Shares purchased) of the following compensation with respect to the Securities which they are offeringcompensation:
(i) A cash fee payable at Closing equal to seven ten percent (710%) of the aggregate gross proceeds raised of the Offering (including proceeds from the sale of Additional Shares, if any), which fee is to be paid by means of a discount from the public offering price in the OfferingOffering or, at the Representative's option, as a cash fee at the First Closing (with respect to the gross proceeds from the sale of the Firm Shares and the Additional Shares, if any, at the First Closing) and at each Additional Closing (with respect to the gross proceeds from the sale of the Additional Shares at such Additional Closing);
(ii) A non-accountable expense allowance, to the Representative on behalf of itself and not on behalf of the Underwriters, equal to three percent (3%) of the gross proceeds of the Offering (including proceeds from the sale of Additional Shares, if any). The Company has heretofore paid a $50,000 advance to the Representative, which shall be applied against the non-accountable expense allowance; and
(iiiii) The Representative’s WarrantsStock Purchase Warrant to the Representative as set forth in Section 12 of this Agreement.
(b) The Company grants the Representative the right of first refusal for a period of twelve (12) months from the Effective Date to act as lead managing underwriter and book runner or minimally as a co-lead manager and co-book runner and/or co-lead placement agent with at least 50.0% of the economics; or, in the case of a three-handed deal, 33.0% of the economics, for any and all future equity, equity-linked or debt (excluding commercial bank debt) offerings undertaken by the Company or any subsidiaries of the Company. The Company shall provide written notice to Representative with terms of such offering and if Representative fails to accept in writing any such proposal for such public or private sale within 15 days after receipt of a written notice from the Company containing such proposal, then Representative will have no claim or right with respect to any such sale contained in any such notice.
(c) The Representative reserves the right to reduce any item of the Underwriters' compensation or adjust the terms thereof as specified herein in the event that a determination shall be made by FINRA the NASD to the effect that the Underwriters’ ' aggregate compensation is in excess of FINRA Rules NASD rules or that the terms thereof require adjustment.
(dc) Whether or not the transactions contemplated by this Agreement, the Registration Statement and the Prospectus are consummated or this Agreement is terminatedterminated (regardless of the reason for such termination), the Company hereby agrees to pay all costs and expenses incident to the performance of its obligations hereunder (provided any expenses exceeding $10,000 shall be subject to the Company’s prior written approval)hereunder, including the following ($35,000 of which has previously been paid by the Company):following:
(i) all expenses in connection with the preparation, printing, formatting for XXXXX "edgarization" and filing of the Registration Statement, any Preliminary Prospectus and the Prospectus and any and all amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers;
(ii) all fees and expenses in connection with filings with FINRA’s Public Offering System;
(iii) all fees and expenses in connection with filing of the Registration Statement and Prospectus with the Commission;
(iv) all fees, disbursements and expenses of the Company’s 's counsel and accountants in connection with the registration of the Securities Shares under the Securities Act and the Offering;
(viii) the cost of producing this Agreement and any agreement among Underwriters, the blue sky survey and memorandum, closing documents and other instruments, agreements or documents (including any compilations thereof) in connection with the Offering and the cost of five (5) bound volumes of such documents for the Representative;
(iv) all reasonable expenses in connection with the qualifications qualification of the Securities Shares for offering and sale under state or foreign securities or blue sky laws, including up to $10,000 for the fees and disbursements of Underwriters’ ' Counsel in connection with such qualification and in connection with any blue sky survey undertaken by such counsel;
(v) the filing fees incident to, and the fees and disbursements of Underwriters' Counsel in connection with, securing any required review by the NASD of the terms of the Offering;
(vi) all fees and expenses in connection with listing the Securities Shares on the Nasdaq Capital MarketAMEX;
(vii) all reasonable travel expenses of the Company’s 's officers and employees and any other expense of the Company incurred in connection with attending or hosting meetings with prospective purchasers of the Securities Shares (“Road Show Expenses”"ROAD SHOW EXPENSES");
(viii) any stock transfer taxes incurred in connection with this Agreement or the Offering;
(ix) the cost of preparing stock certificates representing the SecuritiesShares;
(x) the cost and charges of any transfer agent or registrar for the SecuritiesShares;
(xi) any reasonable cost and expenses in conducting satisfactory due diligence investigation and analysis of the Company’s officers and directors;
(xii) any reasonable expenses and fees incurred by Underwriters’ Counsel; and
(xiii) all other costs and expenses incident to the performance of the Company obligations hereunder which are not otherwise specifically provided for in this Section 5.
(e) In addition to the costs and expenses set forth in Section 5(d) above, the Company will be responsible for: (i) the cost of two (2) “"tombstone” " advertisements to be placed in appropriate daily or weekly periodicals of the Representative’s 's choice (i.e., The Wall Street Journal and The New York Times); and (ii) the cost of leather bound volumes of the Offering documents and Offering commemorative lucite (or other reasonable form) memorabilia, both to be supplied to the Representative, in such quantities as Representative may reasonably request.
(f) It is understood, however, that except as provided in this Section 5, and Sections 7, 8 and 11(d) hereof, the Underwriters will pay all of their own costs and expenses. Notwithstanding anything to the contrary in this Section 5, in the event that this Agreement is terminated pursuant to Section 11(b) hereof, or subsequent to a Material Adverse Change, the Company will pay, less any advances previously paid (the “Advances”), all out-of-pocket expenses of the Underwriters (including but not limited to fees and disbursements of Underwriters’ Counsel and reasonable travel) incurred in connection herewith which shall be limited to expenses which are actually incurred as allowed under FINRA Rule 5110 and the aggregate amount of such expenses to be reimbursed by the Company shall not exceed $100,000.and
Appears in 1 contract
Consideration; Payment of Expenses. (a) In consideration of the services to be provided for hereunder, the Company shall pay to the Underwriters or their respective designees their pro rata portion (based on the Securities Shares purchased) of the following compensation with respect to the Securities which they are offeringcompensation:
(i) A cash fee payable at Closing equal to An underwriting discount of seven percent (7%) of the aggregate gross proceeds raised in of the Offering; and
(ii) a non-accountable expense allowance equal to two percent (2%) of the gross proceeds of the Offering (exclusive of proceeds from the sale of Additional Shares), less $50,000 previously paid to Maxim Group LLC. It is understood and agreed, however, that no underwriting discounts or commissions or non-accountable expense allowance shall be payable to the Underwriters in respect of an amount of Firm Shares (the “Stockholder Shares”) to be purchased in the Offering at the public offering price by Bxxx Capital Ventures, its affiliates and Radius Ventures (the “Stockholders”) with $1.2 million (plus interest accrued as of the Closing Date) to be paid to the Stockholders out of the proceeds from the Offering in repayment of short-term loans owed by the Company to the Stockholders and then utilized by such Stockholders to purchase such Firm Shares. The Representative’s WarrantsRepresentative will arrange with its clearing firm for all necessary procedures to effect the payment and delivery for the Stockholder Shares by the Stockholders as described above.
(b) The Company grants the Representative the right of first refusal for a period of twelve (12) months from the Effective Date to act as lead managing underwriter and book runner or minimally as a co-lead manager and co-book runner and/or co-lead placement agent with at least 50.0% of the economics; or, in the case of a three-handed deal, 33.0% of the economics, for any and all future equity, equity-linked or debt (excluding commercial bank debt) offerings undertaken by the Company or any subsidiaries of the Company. The Company shall provide written notice to Representative with terms of such offering and if Representative fails to accept in writing any such proposal for such public or private sale within 15 days after receipt of a written notice from the Company containing such proposal, then Representative will have no claim or right with respect to any such sale contained in any such notice.
(c) The Representative reserves the right to reduce any item of its compensation or adjust the terms thereof as specified herein in the event that a determination shall be made by FINRA to the effect that the Underwriters’ aggregate compensation is in excess of FINRA Rules rules or that the terms thereof require adjustment.
(dc) Whether or not not: (i) the transactions are contemplated by this Agreement, (ii) the Registration Statement and the Prospectus are consummated or (iii) this Agreement is terminated, the Company hereby agrees to pay all costs and expenses incident to the performance of its obligations hereunder (provided any expenses exceeding $10,000 shall be subject to the Company’s prior written approval)hereunder, including the following ($35,000 of which has previously been paid by the Company):following:
(i) all expenses in connection with the preparation, printing, formatting for XXXXX “edgarization” and filing of the Registration Statement, any Preliminary Prospectus and the Prospectus and any and all amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers;
(ii) all fees and expenses in connection with filings with FINRA’s Public Offering System;
(iii) all fees and expenses in connection with filing of the Registration Statement and Prospectus with the Commission;
(iv) all fees, disbursements and expenses of the Company’s counsel and accountants in connection with the registration of the Securities Shares under the Securities Act and the Offering;
(viii) the cost of producing this Agreement and any agreement among Underwriters, blue sky survey, closing documents and other instruments, agreements or documents (including any compilations thereof) in connection with the Offering;
(iv) all reasonable expenses in connection with the qualifications qualification of the Securities Shares for offering and sale under state or foreign securities or blue sky laws, including up to $10,000 for the fees and disbursements of Underwriters’ Counsel as set forth in Section 5(d) hereof in connection with such qualification and in connection with any blue sky survey undertaken by such counsel;
(v) the filing fees incident to securing any required review by FINRA of the terms of the Offering;
(vi) all fees and expenses in connection with listing the Securities Shares on the Nasdaq Capital MarketAMEX;
(vii) all reasonable travel expenses of the Company’s officers Company and employees and any other expense of the Company its representatives incurred in connection with attending or hosting meetings with prospective purchasers of the Securities Shares (“Road Show Expenses”);
(viii) any stock transfer taxes incurred in connection with this Agreement or the Offering;
(ix) the cost of preparing stock certificates representing the Securities;
Shares; (x) the cost and charges of any transfer agent or registrar for the Securities;
(xi) any reasonable cost and expenses in conducting satisfactory due diligence investigation and analysis of the Company’s officers and directors;
(xii) any reasonable expenses and fees incurred by Underwriters’ CounselShares; and
(xiii) all other costs and expenses incident to the performance of the Company obligations hereunder which are not otherwise specifically provided for in this Section 5.
(e) In addition to the costs and expenses set forth in Section 5(d) above, the Company will be responsible for: (i) the cost of two (2) “tombstone” advertisements to be placed in appropriate daily or weekly periodicals of the Representative’s choice (i.e., The Wall Street Journal and The New York Times); and (ii) the cost of leather bound volumes of the Offering documents and Offering commemorative lucite (or other reasonable form) memorabilia, both to be supplied to the Representative, in such quantities as Representative may reasonably request.
(f) It is understood, however, that except as provided in this Section 5, and Sections 7, 8 and 11(d) hereof, the Underwriters will pay all of their own costs and expenses. Notwithstanding anything to the contrary in this Section 5, in the event that this Agreement is terminated pursuant to Section 11(b) hereof, or subsequent to a Material Adverse Change, the Company will pay, less any advances previously paid (the “Advances”), all out-of-pocket expenses of the Underwriters (including but not limited to fees and disbursements of Underwriters’ Counsel and reasonable travel) incurred in connection herewith which shall be limited to expenses which are actually incurred as allowed under FINRA Rule 5110 and the aggregate amount of such expenses to be reimbursed by the Company shall not exceed $100,000.
Appears in 1 contract
Consideration; Payment of Expenses. (a) In consideration of the services to be provided for hereunder, the Company shall pay to the Underwriters or their respective designees their pro rata portion (based on the Public Securities purchased) of the following aggregate compensation with respect to the Public Securities which they are offering:
(i) A cash fee payable at Closing An underwriting discount equal to seven eight percent (78%) of the aggregate gross proceeds raised in the Offeringoffering of Public Securities from sales to purchasers introduced by the Underwriters or an underwriting discount equal to six percent (6%) of the aggregate gross proceeds raised in the offering of Public Securities from sales to purchasers introduced by the Company; andprovided, however, that no discount or commission will be payable by the Company in respect of Firm Shares issued in satisfaction of the Director Note and/or Investor Note (each as defined in the Registration Statement);
(ii) The Representative’s Warrants.; and
(biii) The Additionally, if the Closing occurs, the Company grants the Representative the right of first refusal for a period of twelve eighteen (1218) months from the Effective Date date of commencement of sales pursuant to the Prospectus to act as lead sole managing underwriter and sole book runner or minimally as a co-lead manager and co-book runner and/or co-lead placement agent with at least 50.0% of the economics; or, in the case of a three-handed deal, 33.0% of the economics, for any and all future public or private equity, equity-linked or debt (excluding commercial bank debt) offerings undertaken by the Company Company, or any subsidiaries of successor to the Company. The Company shall provide written notice to the Representative with the terms of such offering and if the Representative fails to accept in writing any such proposal for such public or private sale within 15 ten (10) business days after receipt of a such written notice from the Company containing such proposalnotice, then the Representative will have no claim or right with respect to any such sale contained in any such noticeoffering(s).
(civ) The Representative reserves the right to reduce any item of compensation or adjust the terms thereof as specified herein in the event that a determination shall be made by FINRA to the effect that the Underwriters’ aggregate compensation is in excess of FINRA Rules rules or that the terms thereof require adjustment.
(dv) Whether or not the transactions contemplated by this Agreement, the Registration Statement and the Prospectus are consummated or this Agreement is terminated, the Company hereby agrees to pay all costs and expenses incident to the performance of its obligations hereunder (provided any expenses exceeding $10,000 shall be subject to the Company’s prior written approval), including the following ($35,000 of which has previously been paid by the Company):following:
(i1) all expenses in connection with the preparation, printing, formatting for XXXXX and filing of the Registration Statement, any Preliminary Prospectus and the Prospectus and any and all exhibits, amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers;
(ii2) all filing fees and expenses in connection with filings with FINRA’s Public Offering System;
(iii) all fees and expenses in connection with filing of the Registration Statement and Prospectus with the Commission;
(iv3) all fees, disbursements and expenses of the Company’s counsel counsel, accountants and accountants other agents and representatives in connection with the registration of the Registered Securities under the Securities Act and the Offeringoffering of the Public Securities;
(v4) all reasonable expenses in connection with the qualifications of the Public Securities for offering and sale under state or foreign securities or blue sky lawslaws (including, including up to $10,000 for without limitation, all filing and registration fees, and the fees and disbursements of Underwriters’ Counsel in connection with such qualification and in connection with any blue sky survey undertaken by such counsel;
(vi5) all fees and expenses in connection with listing the Securities Shares on the Nasdaq Capital Marketa national securities exchange;
(vii6) all reasonable expenses, including travel expenses and lodging expenses, of the Company’s officers officers, directors and employees and any other expense of the Company incurred in connection with attending or hosting meetings with prospective purchasers of the Public Securities (“Road Show Expenses”)and any fees and expenses associated with the i-Deal system and NetRoadshow;
(viii7) any stock transfer taxes or other taxes incurred in connection with this Agreement or the Offeringoffering, including any stock transfer taxes payable upon the transfer of securities to the Underwriters;
(ix) 8) the cost of preparing costs associated with preparing, printing and delivering certificates representing the Public Securities;
(x9) the cost and charges of any transfer agent or registrar for the Public Securities;
(xi10) any reasonable cost and expenses in conducting satisfactory due diligence investigation and analysis of subject to the Company’s officers and directors;
following proviso, other costs (xii) any reasonable expenses and fees incurred by including Underwriters’ Counsel; and
(xiiicounsel’s fees and expenses) all other costs and expenses incident to the performance offering of the Company obligations hereunder which Public Securities that are not otherwise specifically provided for in this Section 5.4(k);
(e11) In addition costs relating to the costs and expenses set forth in Section 5(d) above, the Company will be responsible for: (i) the cost of two (2) “tombstone” advertisements to be placed in appropriate daily or weekly periodicals background checks of the RepresentativeCompany’s choice (i.e., The Wall Street Journal officers and The New York Times)directors; and (ii) the cost of leather bound volumes of the Offering documents and Offering commemorative lucite (or other reasonable form) memorabilia, both to be supplied to the Representative, in such quantities as Representative may reasonably request.
(f) It is understoodprovided, however, that except as provided in this Section 5, all such Underwriters’ counsel’s fees and Sections 7, 8 and 11(d) hereof, expenses that are incurred by the Underwriters will pay all of their own costs and expenses. Notwithstanding anything to the contrary in this Section 5, in the event that this Agreement is terminated pursuant to Section 11(b) hereof, or subsequent to a Material Adverse Change, for which the Company will pay, less any advances previously paid (the “Advances”), all out-of-pocket expenses of the Underwriters (including but not limited to fees and disbursements of Underwriters’ Counsel and reasonable travel) incurred in connection herewith which shall be limited to expenses which are actually incurred as allowed under FINRA Rule 5110 and the aggregate amount of such expenses to be reimbursed by the Company responsible shall not exceed $100,000100,000 in the aggregate in the event of a closing of the offering of Public Securities.
Appears in 1 contract
Samples: Underwriting Agreement (Chromocell Therapeutics Corp)
Consideration; Payment of Expenses. (a) In consideration of the services to be provided for hereunder, the Company shall pay to the Underwriters or their respective designees their pro rata portion (based on the Securities purchased) of the following compensation with respect to the Offered Securities which they are offering:
(i) A cash fee payable at Closing An underwriting discount equal to seven eight percent (78%) of the aggregate gross proceeds raised in the Offering; and
(ii) The Representative’s Underwriters’ Warrants.
(biii) The Additionally, if the Closing occurs, the Company grants the Representative the right of first refusal for a period of twelve (12) months from the Effective Date date of commencement of sales pursuant to the Prospectus to act as lead managing underwriter and sole book runner or minimally as a co-lead manager and co-book runner and/or co-lead placement agent with at least 50.0% of the economics; or, in the case of a three-handed deal, 33.0% of the economics, for any and all future public or private equity, equity-linked or debt offerings (excluding commercial bank debt) offerings undertaken by the Company Company, its Subsidiary(ies), or any subsidiaries of successor thereto, but excluding any private placement in which the CompanyCompany (or its Subsidiary or successor) does not use an underwriter or placement agent. The Company shall provide written notice to the Representative with the terms of such offering and if the Representative fails to accept in writing any such proposal for such public or private sale within 15 ten (10) days after receipt of a such written notice from the Company containing such proposalnotice, then the Representative will have no claim or right with respect to any such sale contained in any such noticeoffering(s).
(civ) The Representative reserves the right to reduce any item of compensation or adjust the terms thereof as specified herein in the event that a determination shall be made by FINRA to the effect that the Underwriters’ aggregate compensation is in excess of FINRA Rules rules or that the terms thereof require adjustment.
(dv) Whether or not the transactions contemplated by this Agreement, the Registration Statement and the Prospectus are consummated or this Agreement is terminated, the Company hereby agrees to pay all costs and expenses incident to the performance of its obligations hereunder (provided any expenses exceeding $10,000 shall be subject to the Company’s prior written approval), including the following ($35,000 of which has previously been paid by the Company):following:
(i1) all expenses in connection with the preparation, printing, formatting for XXXXX and filing of the Registration Statement, any Preliminary Prospectus and the Prospectus and any and all exhibits, amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers;
(ii2) all filing fees and expenses in connection with filings with FINRA’s Public Offering System;
(iii) all fees and expenses in connection with filing of the Registration Statement and Prospectus with the Commission;
(iv3) all fees, disbursements and expenses of the Company’s counsel counsel, accountants and accountants other agents and representatives in connection with the registration of the Securities under the Securities Act and the Offering;
(v4) all reasonable expenses in connection with the qualifications of the Securities for offering and sale under state or foreign securities or blue sky lawslaws (including, including up to $10,000 for without limitation, all filing and registration fees, and the fees and disbursements of Underwriters’ Counsel in connection with such qualification and in connection with any blue sky survey undertaken by such counsel;
(vi5) all fees and expenses in connection with listing the Securities on the Nasdaq Capital Marketa national securities exchange;
(vii6) all reasonable expenses, including travel expenses and lodging expenses, of the Company’s officers officers, directors and employees and any other expense of the Company incurred in connection with attending or hosting meetings with prospective purchasers of the Securities (“Road Show Expenses”)and any fees and expenses associated with the i-Deal system and NetRoadshow;
(viii7) any stock transfer taxes or other taxes incurred in connection with this Agreement or the Offeringoffering, including any stock transfer taxes payable upon the transfer of securities to the Underwriters;
(ix) 8) the cost of preparing costs associated with preparing, printing and delivering certificates representing the Securities;
(x9) the cost and charges of any transfer agent or registrar for the Securities;
(xi10) any reasonable cost and expenses in conducting satisfactory due diligence investigation and analysis of subject to the Company’s officers and directors;
following proviso, other costs (xii) any reasonable expenses and fees incurred by including Underwriters’ Counsel; and
(xiiicounsel’s fees and expenses) all other costs and expenses incident to the performance of the Company obligations hereunder which Offering that are not otherwise specifically provided for in this Section 5.4(k);
(e11) In addition costs relating to the costs and expenses set forth in Section 5(d) above, the Company will be responsible for: (i) the cost of two (2) “tombstone” advertisements to be placed in appropriate daily or weekly periodicals background checks of the RepresentativeCompany’s choice (i.e., The Wall Street Journal officers and The New York Times); and (ii) the cost of leather bound volumes of the Offering documents and Offering commemorative lucite (or other reasonable form) memorabilia, both to be supplied to the Representative, in such quantities as Representative may reasonably request.
(f) It is understood, however, that except as provided in this Section 5, and Sections 7, 8 and 11(d) hereof, the Underwriters will pay all of their own costs and expenses. Notwithstanding anything to the contrary in this Section 5, in the event that this Agreement is terminated pursuant to Section 11(b) hereof, or subsequent to a Material Adverse Change, the Company will pay, less any advances previously paid (the “Advances”), all out-of-pocket expenses of the Underwriters (including but not limited to fees and disbursements of Underwriters’ Counsel and reasonable travel) incurred in connection herewith which shall be limited to expenses which are actually incurred as allowed under FINRA Rule 5110 and the aggregate amount of such expenses to be reimbursed by the Company shall not exceed $100,000.directors;
Appears in 1 contract
Consideration; Payment of Expenses. (a) In consideration of the services to be provided for hereunder, the Company shall pay to the Underwriters or their respective designees their pro rata portion (based on the Public Securities purchased) of the following aggregate compensation with respect to the Public Securities which they are offering:
(i) A cash fee payable at Closing An underwriting discount equal to seven percent (7%) of the aggregate gross proceeds raised in the Offeringoffering of Public Securities; andprovided, however, that no discount or commission will be payable by the Company in respect of Firm Shares issued in satisfaction of the Director Note and/or Investor Note (each as defined in the Registration Statement);
(ii) The Representative’s Warrants.;
(biii) The Additionally, if the Closing occurs, the Company grants the Representative the right of first refusal for a period of twelve eighteen (1218) months from the Effective Date closing of the Offering to act as lead sole managing underwriter and sole book runner or minimally as a co-lead manager and co-book runner and/or co-lead placement agent with at least 50.0% of the economics; or, in the case of a three-handed deal, 33.0% of the economics, for any and all future public or private equity, equity-linked or debt (excluding commercial bank debt) offerings undertaken by the Company Company, or any subsidiaries of successor to the Company. The Company shall provide written notice to the Representative with the terms of such offering and if the Representative fails to accept in writing any such proposal for such public or private sale within 15 ten (10) business days after receipt of a such written notice from the Company containing such proposalnotice, then the Representative will have no claim or right with respect to any such sale contained in any such notice.
(c) The Representative reserves the right to reduce any item of compensation or adjust the terms thereof as specified herein in the event that a determination shall be made by FINRA to the effect that the Underwriters’ aggregate compensation is in excess of FINRA Rules or that the terms thereof require adjustment.
(d) Whether or not the transactions contemplated by this Agreement, the Registration Statement and the Prospectus are consummated or this Agreement is terminated, the Company hereby agrees to pay all costs and expenses incident to the performance of its obligations hereunder (provided any expenses exceeding $10,000 shall be subject to the Company’s prior written approvaloffering(s), including the following ($35,000 of which has previously been paid by the Company):
(i) all expenses in connection with the preparation, printing, formatting for XXXXX and filing of the Registration Statement, any Preliminary Prospectus and the Prospectus and any and all amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers;
(ii) all fees and expenses in connection with filings with FINRA’s Public Offering System;
(iii) all fees and expenses in connection with filing of the Registration Statement and Prospectus with the Commission;; and
(iv) all feesSubject to FINRA Rule 5110(g)(5)(B), disbursements the Representative shall be entitled to compensation under Section 4(k)(i) hereof, calculated in the manner set forth therein, with respect to any public or private offering of securities or other financing or capital-raising transaction of any kind (“Tail Financing”) to the extent that such financing or capital is provided to the Company by investors whom the Representative had contacted during the Engagement Period (excluding any financing or capital provided to the Company by investors whom the Company introduced to the Representative, as listed on Schedule B, attached hereto) or introduced to the Company during the Engagement Period, if such Tail Financing is consummated at any time within the twelve (12)-month period following the expiration or termination of that certain engagement agreement by and expenses between the Company and the Representative, dated as of October 5, 2023 (“Engagement Agreement”). If the Tail Financing is not an underwritten offering, the amount of the Company’s counsel and accountants underwriting discount specified in connection with Section 4(k)(i) shall be paid by the registration Company to the Representative as a cash fee from the proceeds of the Securities under Closing. “Engagement Period” shall mean the Securities Act period beginning on October 5, 2023, and the Offering;
(v) all reasonable expenses in connection with the qualifications of the Securities for offering and sale under state or foreign securities or blue sky laws, including up to $10,000 for the fees of Underwriters’ Counsel in connection with such qualification and in connection with any blue sky survey undertaken by such counsel;
(vi) all fees and expenses in connection with listing the Securities ending on the Nasdaq Capital Market;
(vii) all reasonable travel expenses earliest of the Company’s officers and employees and any other expense of the Company incurred in connection with attending or hosting meetings with prospective purchasers of the Securities (“Road Show Expenses”);
(viii) any stock transfer taxes incurred in connection with this Agreement or the Offering;
(ix) the cost of preparing certificates representing the Securities;
(x) the cost and charges of any transfer agent or registrar for the Securities;
(xi) any reasonable cost and expenses in conducting satisfactory due diligence investigation and analysis of the Company’s officers and directors;
(xii) any reasonable expenses and fees incurred by Underwriters’ Counsel; and
(xiii) all other costs and expenses incident to the performance of the Company obligations hereunder which are not otherwise specifically provided for in this Section 5.
(e) In addition to the costs and expenses set forth in Section 5(d) above, the Company will be responsible for: (i) the cost of two (2) “tombstone” advertisements to be placed in appropriate daily October 5, 2024, or weekly periodicals of the Representative’s choice (i.e., The Wall Street Journal and The New York Times); and (ii) the cost of leather bound volumes of date that the Offering documents and Offering commemorative lucite (or other reasonable form) memorabilia, both to be supplied Company terminates the Engagement Agreement pursuant to the Representative, in such quantities as Representative may reasonably requestterms therein.
(f) It is understood, however, that except as provided in this Section 5, and Sections 7, 8 and 11(d) hereof, the Underwriters will pay all of their own costs and expenses. Notwithstanding anything to the contrary in this Section 5, in the event that this Agreement is terminated pursuant to Section 11(b) hereof, or subsequent to a Material Adverse Change, the Company will pay, less any advances previously paid (the “Advances”), all out-of-pocket expenses of the Underwriters (including but not limited to fees and disbursements of Underwriters’ Counsel and reasonable travel) incurred in connection herewith which shall be limited to expenses which are actually incurred as allowed under FINRA Rule 5110 and the aggregate amount of such expenses to be reimbursed by the Company shall not exceed $100,000.
Appears in 1 contract
Samples: Underwriting Agreement (Chromocell Therapeutics Corp)
Consideration; Payment of Expenses. (a) In consideration of the services to be provided for hereunder, the Company shall pay to the Underwriters Underwriter or their respective designees their pro rata portion (based on the Securities purchased) of the following compensation with respect to the Securities which they are offeringpurchase from the Company in this Offering:
(i) A cash fee payable at Closing an underwriting discount equal to seven and one-half percent (77.5%) of the aggregate gross proceeds raised in the Offering;
(ii) a non-accountable expense allowance of one percent (1.0%) of the gross proceeds of the Offering;
(iii) an accountable expense allowance of up to $150,000, of which $100,000 has already been paid to the Underwriter as an advance against accountable expenses; and
(iiiv) The Representativethe Company shall grant to the Underwriter or its designated affiliates share purchase warrants (the “Underwriter’s Warrants”) covering a number of shares equal to seven and half percent (7.5%) of the total number of Firm and Option Shares sold in this offering.
(b) In compliance with FINRA Rule 5110(e)(1), the Underwriter’s Warrants and the underlying securities will be locked up for one year beginning on the date of commencement of sales of the Offering and will expire five (5) years after the Effective Date. The Underwriter’s Warrants will be exercisable at a price equal to one hundred and thirty percent (130%) of the public offering price of the underlying Class A Ordinary Shares in connection with the Offering. The Underwriter’s Warrants shall not be redeemable. The Company grants will register the Representative Class A Ordinary Shares underlying the right Underwriter’s Warrants under the Act and will file all necessary undertakings in connection therewith. The Underwriter’s Warrants and the underlying securities shall not be sold during the Offering, or sold, transferred, assigned, pledged, or hypothecated, or be the subject of first refusal any hedging, short sale, derivative, put, or call transaction that would result in the effective economic disposition of the securities by any person for a period of twelve 180 days beginning on the date of commencement of sales of the Offering, except that they or any portion thereof may be transferred or assigned to any successor to the Underwriter, any officer, manager, member or partner of the Underwriter, as well as to any member participating in the Offering and the officers, partners, managers or members thereof, if all securities so transferred remain subject to the lock-up restriction for the remainder of the time period. The Underwriter’s Warrants may be exercised at any time after issuance of the Warrants as to all or a lesser number of the underlying Class A Ordinary Shares, will provide for cashless exercise and will contain provisions for one demand registration of the sale of the underlying Class A Ordinary Share at the Company’s expense, an additional demand registration at the Underwriter’s Warrants holder’s expense, and unlimited “piggyback” registration rights for a period of five (125) months from years after the Effective Date to act as lead managing underwriter and book runner or minimally as a co-lead manager and co-book runner and/or co-lead placement agent with at least 50.0% of the economics; or, Company’s expense. The Underwriter’s Warrants shall further provide for adjustment in the case of a three-handed deal, 33.0% of the economics, for any number and all future equity, equity-linked or debt (excluding commercial bank debt) offerings undertaken by the Company or any subsidiaries of the Company. The Company shall provide written notice to Representative with terms price of such offering warrants (and if Representative fails the Class A Ordinary Share underlying such Warrants) in the event of recapitalization, merger or other structural transaction to accept in writing any such proposal for such public or private sale within 15 days after receipt of a written notice from the Company containing such proposal, then Representative will have no claim or right with respect to any such sale contained in any such noticeprevent dilution.
(c) The Representative Underwriter reserves the right to reduce any item of compensation or adjust the terms thereof as specified herein in the event that a determination shall be made by FINRA to the effect that the UnderwritersUnderwriter’ aggregate compensation is in excess of FINRA Rules or that the terms thereof require adjustment.
(d) Whether or not the transactions contemplated by this Agreement, the Registration Statement and the Prospectus are consummated or this Agreement is terminated, the Company hereby agrees to pay all costs and expenses incident to the performance of its obligations hereunder (provided any expenses exceeding $10,000 shall be subject to the Company’s prior written approval)Offering, including the following ($35,000 of which has previously been paid by the Company):following:
(i) all expenses in connection with the preparation, printing, formatting for XXXXX and filing of the Registration Statement, any Preliminary Prospectus and the Prospectus and any and all amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters Underwriter and dealers;
(ii) all fees and expenses in connection with filings with FINRA’s Public Offering System;
(iii) all fees and expenses in connection with filing of the Registration Statement and Prospectus with the Commission;
(iv) all fees, disbursements and expenses of the Company’s counsel and accountants in connection with the registration of the Securities under the Securities Act and the Offering;
(viv) all reasonable expenses in connection with the qualifications of the Securities for offering and sale under state or foreign securities or blue sky laws, including up to $10,000 for the fees of Underwriters’ Counsel in connection with such qualification and in connection with any blue sky survey undertaken by such counsel;
(viv) all fees and expenses in connection with listing the Securities on the Nasdaq Capital Marketa national securities exchange;
(viivi) all reasonable travel expenses of the Company’s officers officers, directors and employees and any other expense of the Company incurred in connection with attending or hosting meetings with prospective purchasers of the Securities Securities;
(“Road Show Expenses”)vii) all the road show expenses incurred by the Company;
(viii) any stock transfer taxes or other taxes incurred in connection with this Agreement or the Offering;
(ix) the costs associated with book building, prospectus tracking and compliance software and the cost of preparing certificates representing the Securities;
(x) the cost and charges of any transfer agent or registrar for the Securities;
(xi) any reasonable cost costs and expenses incurred in conducting satisfactory due diligence investigation and analysis background checks of the Company’s officers and directorsdirectors by a background search firm acceptable to the Underwriter, not to exceed $15,000;
(xii) any reasonable expenses and fees incurred by Underwriters’ Counsel; and
(xiii) all other costs and expenses incident to the performance of the Company obligations hereunder which are not otherwise specifically provided for in this Section 5.
(e) In addition to the costs and expenses set forth in Section 5(d) above, the Company will be responsible for: (i) the cost of two (2) “tombstone” advertisements to be placed in appropriate daily or weekly periodicals of the Representative’s choice (i.e., The Wall Street Journal and The New York Times); and (ii) the cost of leather associated with bound volumes of the Offering documents and Offering commemorative lucite (or other reasonable form) memorabilia, both to be supplied to the Representative, mementos in such quantities as Representative the Underwriter may reasonably request.
(f) It is understood, however, that except as provided in this Section 5, and Sections 7, 8 and 11(d) hereof, the Underwriters will pay all of their own costs and expenses. Notwithstanding anything not to the contrary in this Section 5, in the event that this Agreement is terminated pursuant to Section 11(b) hereof, or subsequent to a Material Adverse Change, the Company will pay, less any advances previously paid (the “Advances”), all out-of-pocket expenses of the Underwriters (including but not limited to fees and disbursements of Underwriters’ Counsel and reasonable travel) incurred in connection herewith which shall be limited to expenses which are actually incurred as allowed under FINRA Rule 5110 and the aggregate amount of such expenses to be reimbursed by the Company shall not exceed $100,000.2,500; and
Appears in 1 contract
Samples: Underwriting Agreement (Golden Sun Education Group LTD)
Consideration; Payment of Expenses. (a) In consideration of the services to be provided for hereunder, the Company shall pay to the Underwriters or their respective designees their pro rata portion (based on the Securities purchased) of the following compensation with respect to the Securities which they are offering:
(i) A cash fee payable at Closing equal to seven percent (7%) of the aggregate gross proceeds raised in the Offering; and
(ii) The Representative’s Warrants.
(b) The Company grants the Representative the right of first refusal for a period of twelve (12) months from the Effective Date to act as lead managing underwriter and book runner or minimally as a co-lead manager and co-book runner and/or co-lead placement agent with at least 50.0% of the economics; or, in the case of a three-handed deal, 33.0% of the economics, for any and all future equity, equity-linked or debt (excluding commercial bank debt) offerings undertaken by the Company or any subsidiaries of the Company. The Company shall provide written notice to Representative with terms of such offering and if Representative fails to accept in writing any such proposal for such public or private sale within 15 days after receipt of a written notice from the Company containing such proposal, then Representative will have no claim or right with respect to any such sale contained in any such notice.
(c) The Representative reserves Representatives reserve the right to reduce any item of compensation or adjust the terms thereof as specified herein in the event that a determination shall be made by FINRA to the effect that the Underwriters’ aggregate compensation is in excess of FINRA Rules or that the terms thereof require adjustment.
(db) At Closing, the Company will reimburse Xxxx Capital Partners, LLC for up to $100,000 of its out-of-pocket expenses incurred in connection with the purchase and sale of the Securities. In addition, on the Closing Date and Option Closing Date, if applicable, the Company will issue to Xxxx Capital Partners, LLC warrants to purchase a number of Shares equal to 5% of the Firm Shares and Option Shares, as the case may be. The warrants will have a term of three years, have an exercise price equal to 120% of the public offering price of the Securities, will provide for cashless exercise at all times and, in accordance with FINRA Rule 5110(g)(1), may not be sold, transferred, assigned, pledged or hypothecated, or be the subject of any hedging, short sale, derivative, put or call transaction that would result in the effective economic disposition of such warrant by any person for a period of 180 days immediately following the effective date of the registration statement, except as provided in FINRA Rule 5110(g)(2).
(c) Whether or not the transactions contemplated by this Agreement, the Registration Statement and the Prospectus are consummated or this Agreement is terminated, the Company hereby agrees to pay all costs and expenses incident to the performance of its obligations hereunder (provided any expenses exceeding $10,000 shall be subject to the Company’s prior written approval)hereunder, including the following ($35,000 of which has previously been paid by the Company):following: [•], 2011
(i) all expenses in connection with the preparation, printing, formatting for XXXXX and filing of the Registration Statement, any Preliminary Prospectus Prospectus, General Disclosure Package and the Prospectus and any and all exhibits, amendments and supplements thereto and the mailing and delivering of a sufficient quantity of copies thereof to the Underwriters and dealersdealers as the Representatives may reasonably request;
(ii) all fees and expenses in connection with the filing of Corporate Offerings Business & Regulatory Analysis (“COBRADesk”) filings with FINRA’s Public Offering System, including the reasonable fees and disbursements of counsel for the Underwriters in connection with such filing;
(iii) all fees and expenses in connection with filing of the Registration Statement and Prospectus with the Commission;
(iv) all the fees, disbursements and expenses of the Company’s counsel and accountants in connection with the registration of the Securities under the Securities Act and the Offering;
(v) all reasonable expenses in connection with the qualifications of the Securities for offering and sale under state or foreign securities or blue sky laws, including up to $10,000 the fees and disbursements of counsel for the fees of Underwriters’ Counsel Underwriters in connection with such qualification and in connection with any blue sky by survey undertaken by such counsel;
(vi) all fees and expenses in connection with listing the Securities on the Nasdaq Capital NASDAQ Global Market;
(vii) all reasonable travel expenses of the Company’s officers and employees and any other expense of the Company incurred in connection with attending or hosting meetings with prospective purchasers of the Securities (“Road Show Expenses”)Securities;
(viii) any stock transfer taxes incurred in connection with this Agreement or the Offering;
(ix) the cost of preparing stock certificates representing the Securities;
(x) the cost and charges of any transfer agent or registrar for the Securities;; and [•], 2011
(xi) any reasonable cost and expenses in conducting satisfactory due diligence investigation and analysis of the Company’s officers and directors;
(xii) any reasonable expenses and fees incurred by Underwriters’ Counsel; and
(xiii) all other costs and expenses incident to the performance of the Company obligations hereunder which are not otherwise specifically provided for in this Section 5.
(e) In addition to the costs and expenses . Except as set forth in Section 5(d) above, the Company will be responsible for: (i) the cost of two (2) “tombstone” advertisements to be placed in appropriate daily or weekly periodicals of the Representative’s choice (i.e., The Wall Street Journal and The New York Times); and (ii) the cost of leather bound volumes of the Offering documents and Offering commemorative lucite (or other reasonable form) memorabilia, both to be supplied to the Representative, in such quantities as Representative may reasonably request.
(f) It is understood, however, that except as provided in this Section 5, and Sections 7, 8 and 11(d) hereofherein, the Underwriters will pay shall be responsible for all of their own costs and expenses. Notwithstanding anything to the contrary in this Section 5, in the event that this Agreement is terminated pursuant to Section 11(b) hereof, or subsequent to a Material Adverse Change, the Company will pay, less any advances previously paid (the “Advances”), all out-of-pocket expenses of the Underwriters (including but not limited to fees and disbursements of Underwriters’ Counsel and reasonable travel) incurred by them in connection herewith which shall be limited to expenses which are actually incurred as allowed under FINRA Rule 5110 and with the aggregate amount of such expenses to be reimbursed by the Company shall not exceed $100,000Offering.
Appears in 1 contract
Samples: Underwriting Agreement (Trunkbow International Holdings LTD)
Consideration; Payment of Expenses. (a) In consideration of the services to be provided for hereunder, the Company shall pay to the Underwriters or their respective designees their pro rata portion (based on the Securities purchased) of the following compensation with respect to the Securities which they are offering:
(i) A cash fee payable at Closing equal to seven percent (7%) of the aggregate gross proceeds raised in the Offering; and
(ii) The Representative’s Warrants.
(b) The Company grants the Representative the right of first refusal for a period of twelve (12) months from the Effective Date to act as lead managing underwriter and book runner or minimally as a co-lead manager and co-book runner and/or co-lead placement agent with at least 50.0% of the economics; or, in the case of a three-handed deal, 33.0% of the economics, for any and all future equity, equity-linked or debt (excluding commercial bank debt) offerings undertaken by the Company or any subsidiaries of the Company. The Company shall provide written notice to Representative with terms of such offering and if Representative fails to accept in writing any such proposal for such public or private sale within 15 days after receipt of a written notice from the Company containing such proposal, then Representative will have no claim or right with respect to any such sale contained in any such notice.
(c) The Representative reserves the right to reduce any item of compensation or adjust the terms thereof as specified herein in the event that a determination shall be made by FINRA to the effect that the Underwriters’ aggregate compensation is in excess of FINRA Rules or that the terms thereof require adjustment.
(db) Whether At Closing, the Company will reimburse Xxxx Capital Partners, LLC for its out-of-pocket expenses incurred in connection with the purchase and sale of the Securities. In addition, on the Closing Date and Option Closing Date, if applicable, the Company hereby agrees to issue and sell to the Underwriters, for an aggregate purchase price of $100, warrants to purchase a number of Shares equal to 2% of the Firm Shares and Additional Shares, as the case may be. The warrants shall be exercisable, in whole or in part, commencing on a date which is one (1) year after the Effective Date and expiring on the five-year anniversary of the Effective Date, at an initial exercise price per share of Common Stock of $1.00, which is equal to 125% of the initial public offering price of the Firm Securities, will provide for cashless exercise at all times and, in accordance with FINRA Rule 5110(g)(1), may not be sold, transferred, assigned, pledged or hypothecated, or be the subject of any hedging, short sale, derivative, put or call transaction that would result in the effective economic disposition of such warrant by any person for a period of 180 days immediately following the effective date of the registration statement, except as provided in FINRA Rule 5110(g)(2).
(c) Subject to Section 11(d), whether or not the transactions contemplated by this Agreement, the Registration Statement and the Prospectus are consummated or this Agreement is terminated, the Company hereby agrees to pay all costs and expenses incident to the performance of its obligations hereunder (provided any expenses exceeding $10,000 shall be subject to the Company’s prior written approval)hereunder, including the following ($35,000 of which has previously been paid by the Company):following:
(i) all expenses in connection with the preparation, printing, formatting for XXXXX and filing of the Registration Statement, any Preliminary Prospectus Prospectus, General Disclosure Package and the Prospectus and any and all exhibits, amendments and supplements thereto and the mailing and delivering of a sufficient quantity of copies thereof to the Underwriters and dealersdealers as the Representative may reasonably request;
(ii) all fees and expenses in connection with filings with FINRA’s the filing on the FINRA Public Offering System;
(iii) all fees and expenses in connection with filing of the Registration Statement and Prospectus with the Commission;
(iv) all the fees, disbursements and expenses of the Company’s counsel and accountants in connection with the registration of the Public Securities under the Securities Act and the Offering;
(v) all reasonable expenses in connection with the qualifications of the Public Securities for offering and sale under state or foreign securities or blue sky laws, including up to $10,000 the fees and disbursements of counsel for the fees of Underwriters’ Counsel Underwriters in connection with such qualification and in connection with any blue sky survey undertaken by such counsel;
(vi) all fees and expenses in connection with listing the Securities on the Nasdaq Capital Market;
(vii) all reasonable travel expenses of the Company’s officers and employees and any other expense of the Company incurred in connection with attending or hosting meetings with prospective purchasers of the Securities (“Road Show Expenses”)Securities;
(viiivii) any stock transfer taxes incurred in connection with this Agreement or the Offering;
(ixviii) the cost of preparing stock certificates representing the Securities;
(xix) the cost and charges of any transfer agent or registrar for the Securities;
(xi) any reasonable cost and expenses in conducting satisfactory due diligence investigation and analysis of the Company’s officers and directors;
(xii) any reasonable expenses and fees incurred by Underwriters’ Counsel; and
(xiiix) all other costs and expenses incident to the performance of the Company obligations hereunder which are not otherwise specifically provided for in this Section 5.; and
(exi) In addition up to the costs and expenses set forth in Section 5(d) above, the Company will be responsible for: (i) the cost an aggregate of two (2) “tombstone” advertisements to be placed in appropriate daily or weekly periodicals of the Representative’s choice (i.e., The Wall Street Journal and The New York Times); and (ii) the cost of leather bound volumes of the Offering documents and Offering commemorative lucite (or other reasonable form) memorabilia, both to be supplied to the Representative, in such quantities as Representative may reasonably request.
(f) It is understood, however, that except as provided in this Section 5, and Sections 7, 8 and 11(d) hereof, the Underwriters will pay all of their own costs and expenses. Notwithstanding anything to the contrary in this Section 5, in the event that this Agreement is terminated pursuant to Section 11(b) hereof, or subsequent to a Material Adverse Change, the Company will pay, less any advances previously paid (the “Advances”), all $135,000 for out-of-pocket expenses of incurred by the Underwriters (in connection with the Offering, including but not limited to the cost of counsel for the Underwriters, and including the reasonable fees and disbursements of Underwriters’ Counsel and reasonable travel) incurred counsel for the Underwriters in connection herewith which shall be limited to expenses which are actually incurred as allowed under with the filing on the FINRA Rule 5110 and the aggregate amount of such expenses to be reimbursed by the Company shall not exceed $100,000Public Offering System.
Appears in 1 contract
Samples: Underwriting Agreement (Enerpulse Technologies, Inc.)
Consideration; Payment of Expenses. (a) In consideration of the services to be provided for hereunder, the Company shall pay to the Underwriters Underwriter or their respective designees their its designee(s) the following compensation (or pro rata portion (based on the Securities purchasedthereof, if applicable) of the following compensation with respect to the Securities which they are offeringpurchased from the Company in this Offering:
(i) A cash fee payable at Closing an underwriting discount equal to seven and one half percent (77.5%) of the aggregate gross proceeds raised in the Offering;
(ii) a non-accountable expense allowance of one percent (1%) of the gross proceeds of the Offering;
(iii) an accountable expense allowance of up to $250,000, of which [$120,000] has already been paid to the Underwriter as an advance against accountable expenses; and
(iiiv) The Representativethe Company shall grant to the Underwriter or its designated affiliates share purchase warrants (the “Underwriter’s Warrants”) covering a number of shares equal to five percent (5%) of the total number of Firm Shares and Option Shares sold in this offering.
(b) In compliance with FINRA Rule 5110(e)(1), the Underwriter’s Warrants and the underlying securities will be locked up for 180 days beginning on the date of commencement of sales of the Offering and will expire five (5) years after the Effective Date. The Underwriter’s Warrants will be exercisable at a price equal to one hundred twenty percent (120%) of the public offering price of the underlying Class A Ordinary Shares in connection with the Offering. The Underwriter’s Warrants shall not be redeemable. The Company grants will register the Representative Class A Ordinary Shares underlying the right Underwriter’s Warrants under the Act and will file all necessary undertakings in connection therewith. The Underwriter’s Warrants and the underlying securities shall not be sold during the Offering, or sold, transferred, assigned, pledged, or hypothecated, or be the subject of first refusal any hedging, short sale, derivative, put, or call transaction that would result in the effective economic disposition of the securities by any person for a period of twelve 180 days beginning on the date of commencement of sales of the Offering, except that they, or any portion thereof, may be transferred or assigned to any successor to the Underwriter, any officer, manager, member or partner of the Underwriter, as well as to any member participating in the Offering and the officers, or partners, managers or members thereof, if all securities so transferred remain subject to the lock-up restriction for the remainder of the time period. The Underwriter may exercise the Underwriter’s Warrants at any time after issuance thereof, as to all or a lesser number of the underlying Class A Ordinary Shares, provided that such Class A Ordinary Shares underlying such Underwriter Warrants will remain subject to the 180-day lock-up period. The Underwriter’s Warrants will provide for cashless exercise and will contain provisions for one demand registration of the sale of the underlying Class A Ordinary Share at the Company’s expense, an additional demand registration at the Underwriter’s Warrants holder’s expense, and unlimited “piggyback” registration rights for a period of five (125) months years after the Effective Date at the Company’s expense and provided that the demand registration rights will not be for more than five years from the Effective Date to act as lead managing underwriter and book runner or minimally as a co-lead manager and co-book runner and/or co-lead placement agent with at least 50.0% of the economics; or, Date. The Underwriter’s Warrants shall further provide for adjustment in the case of a three-handed deal, 33.0% of the economics, for any number and all future equity, equity-linked or debt (excluding commercial bank debt) offerings undertaken by the Company or any subsidiaries of the Company. The Company shall provide written notice to Representative with terms price of such offering warrants (and if Representative fails the Class A Ordinary Share underlying such Warrants) in the event of recapitalization, merger or other structural transaction to accept in writing any such proposal for such public or private sale within 15 days after receipt of a written notice from the Company containing such proposal, then Representative will have no claim or right with respect to any such sale contained in any such noticeprevent dilution.
(c) The Representative Underwriter reserves the right to reduce any item of compensation or adjust the terms thereof as specified herein in the event that a determination shall be made by FINRA to the effect that the UnderwritersUnderwriter’ aggregate compensation is in excess of FINRA Rules or that the terms thereof require adjustment.
(d) Whether or not the transactions contemplated by this Agreement, the Registration Statement and the Prospectus are consummated or this Agreement is terminated, the Company hereby agrees to pay all costs and expenses incident to the performance of its obligations hereunder (provided any expenses exceeding $10,000 shall be subject to the Company’s prior written approval)Offering, including the following ($35,000 of which has previously been paid by the Company):following:
(i) all expenses in connection the costs of preparing, printing and filing the Registration Statement with the preparationSEC, printing, formatting for XXXXX and filing of the Registration Statement, any Preliminary Prospectus and the Prospectus and any and all amendments and supplements thereto thereto, and post effective amendments, as well as the filing with FINRA, and payment of all necessary fees in connection therewith and the mailing printing of a sufficient quantity of preliminary and delivering of copies thereof to final prospectuses as the Underwriters and dealersRepresentative may reasonably request;
(ii) all fees the costs of preparing, printing and expenses delivering exhibits thereto, in connection with filings with FINRA’s Public Offering Systemsuch quantities as the Representative may reasonably request;
(iii) all fees and expenses in connection with filing of the Registration Statement and Prospectus with the Commission;
(iv) all fees, expenses and disbursements and expenses relating to the registration, qualification or exemption of the Company’s counsel and accountants in connection with the registration of the Securities securities offered under the Securities Act and securities laws of foreign jurisdictions designated by the OfferingRepresentative;
(v) all reasonable expenses in connection with the qualifications of the Securities for offering and sale under state or foreign securities or blue sky laws, including up to $10,000 for the fees of Underwriters’ Counsel in connection with such qualification and in connection with any blue sky survey undertaken by such counsel;
(vi) all fees and expenses in connection with listing the Securities on the Nasdaq Capital Market;
(vii) all reasonable travel expenses of and accountants for the Company’s officers and employees and , including fees associated with any other expense of the Company incurred in connection with attending or hosting meetings with prospective purchasers of the Securities (“Road Show Expenses”);
(viii) any stock transfer taxes incurred in connection with this Agreement or the Offeringblue sky filings where applicable;
(ix) fees associated with the cost of preparing certificates representing the Securities;
(x) the cost and charges of any Company's transfer agent or registrar for the Securitiesagent;
(xi) any reasonable cost and expenses in conducting satisfactory due diligence investigation and analysis of the Company’s officers and directorsfees, if necessary, associated with translation services;
(xii) any reasonable expenses and fees incurred by Underwriters’ Counsel; and
(xiii) all other expenses related to road shows;
(xv) the costs and expenses incident to the performance of the Company obligations hereunder which are not otherwise specifically provided for in this Section 5.any pre-approved due diligence meetings;
(e) In addition to the costs and expenses set forth in Section 5(d) above, the Company will be responsible for: (i) the cost of two (2) “tombstone” advertisements to be placed in appropriate daily or weekly periodicals of the Representative’s choice (i.e., The Wall Street Journal and The New York Times); and (ii) the cost of leather bound volumes of the Offering documents and Offering commemorative lucite (or other reasonable form) memorabilia, both to be supplied to the Representative, in such quantities as Representative may reasonably request.
(f) It is understood, however, that except as provided in this Section 56, and Sections 78, 8 9 and 11(d) hereof, the Underwriters Underwriter will pay all of their own costs and expenses. Notwithstanding anything to the contrary in this Section 56, in the event that this Agreement is terminated pursuant to Section 11(b) hereof, or subsequent to a Material Adverse Change, the Company will paypay $250,000, less any advances previously paid which as of the date hereof is $120,000, as an advance to be applied towards the accountable expenses allowance (the “AdvancesAdvance”). On the Closing Date, all the Company shall pay the Underwriter $130,000, such that as of the Closing Date the Company shall have paid the Underwriter a total of no more than $250,000 in respect of such accountable expenses pursuant to this Section 6(e). All documented out-of-pocket expenses of the Underwriters Underwriter (including but not limited to tombstone, fees and disbursements of Underwriters’ Counsel Underwriter’s Counsel, and reasonable and accountable travel) incurred in connection herewith which shall be limited to expenses which are actually incurred as allowed under FINRA Rule 5110 5110(g)(4)(A) and in any event, the aggregate amount of such expenses to be reimbursed by the Company shall not exceed $100,000250,000, including the Advances. To the extent that the Underwriter’ out-of-pocket expenses are less than the Advance, the Underwriter will return to the Company that portion of the Advances not offset by actual expenses, regardless of whether the offering is terminated.
Appears in 1 contract
Consideration; Payment of Expenses. (a) In consideration of the services to be provided for hereunder, the Company shall pay to the Underwriters or their respective designees their pro rata portion (based on the Securities purchased) of the following compensation with respect to the Securities Units which they are offering:
(i) A cash fee payable at Closing equal to seven An underwriting discount of eight percent (78%) as set forth in Section 1(a) and (c);
(ii) A corporate finance fee of the aggregate gross proceeds raised two percent (2%) as set forth in the OfferingSection 1(a) and (c); and
(iiiii) The Representative’s WarrantsPurchase Option.
(b) The Company grants the Representative the right of first refusal for a period of twelve eighteen (1218) months from the Effective Closing Date to act as lead managing underwriter and book runner or minimally as a co-lead manager and co-book runner and/or co-lead placement agent with at least 50.0% of the economics; or, in the case of a three-handed deal, 33.0% of the economicsrunner, for any and all future equity, equity-linked or debt (excluding commercial bank debt) transactions where the Company has elected to employ a banker and any and all public and private equity offerings undertaken by of the Company or any subsidiaries successor to or any subsidiary of the Company. The Company shall provide written notice to Representative with terms of such offering and if Representative fails to accept in writing any such proposal for such public or private sale within 15 days after receipt of a written notice from the Company containing such proposal, then Representative will have no claim or right with respect to any such sale contained in any such notice.
(c) The Representative reserves the right to reduce any item of compensation or adjust the terms thereof as specified herein in the event that a determination shall be made by FINRA to the effect that the Underwriters’ aggregate compensation is in excess of FINRA Rules or that the terms thereof require adjustment.
(d) Whether or not the transactions contemplated by this Agreement, the Registration Statement and the Prospectus are consummated or this Agreement is terminated, the Company hereby agrees to pay all costs and expenses incident to the performance of its obligations hereunder (provided any expenses exceeding $10,000 shall be subject to the Company’s prior written approval)hereunder, including the following ($35,000 of which has previously been paid by the Company):following:
(i) all expenses in connection with the preparation, printing, formatting for XXXXX and filing of the Registration Statement, any Preliminary Prospectus and the Prospectus and any and all amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers;
(ii) all fees and expenses in connection with the filing of Corporate Offerings Business & Regulatory Analysis (“COBRADesk”) filings with FINRA’s Public Offering System;
(iii) all fees and expenses in connection with filing of the Registration Statement and Prospectus with the Commission;
(iv) all the fees, disbursements and expenses of the Company’s counsel and accountants in connection with the registration of the Securities under the Securities Act and the Offering;
(v) all reasonable expenses in connection with the qualifications of the Securities Units for offering and sale under state or foreign securities or blue sky laws, including up to $10,000 25,000 for the fees of Underwriters’ Counsel counsel for the Underwriters in connection with such qualification and in connection with any blue sky survey undertaken by such counsel;
(vi) all fees and expenses in connection with listing the Securities on the Nasdaq NASDAQ Capital Market;
(vii) all reasonable travel expenses of the Company’s officers and employees and any other expense of the Company incurred in connection with attending or hosting meetings with prospective purchasers of the Securities Units (“Road Show Expenses”);
(viii) any stock transfer taxes incurred in connection with this Agreement or the Offering;
(ix) the cost of preparing stock certificates representing the Securities;
(x) the cost and charges of any transfer agent or registrar for the Securities;
(xi) any reasonable cost and expenses in conducting satisfactory due diligence investigation and analysis of the Company’s officers and directors;
(xii) any reasonable expenses and fees incurred by Underwriters’ Counselcounsel to the Underwriters subject to a maximum amount of $125,000; and
(xiii) all other costs and expenses incident to the performance of the Company obligations hereunder which are not otherwise specifically provided for in this Section 5.
(e) In addition to the costs and expenses set forth in Section 5(d) above5(c), the Company will be responsible for: (i) the cost of two (2) “tombstone” advertisements to be placed in appropriate daily or weekly periodicals of the Representative’s choice (i.e., The Wall Street Journal and The New York Times); and (ii) the cost of [leather bound bound] volumes of the Offering documents and Offering commemorative lucite (or other reasonable form) memorabilia, both to be supplied to the Representative, in such quantities as Representative may reasonably request.
(f) It is understood, however, that except as provided in this Section 5, and Sections 76, 8 7 and 11(d) hereof, the Underwriters will pay all of their own costs and expenses, including the fees of their counsel. Notwithstanding anything to the contrary in this Section 5, in the event that this Agreement is terminated pursuant to Section 5 or 11(b) hereof, or subsequent to a Material Adverse Change, the Company will pay, up to $125,000 (less any advances previously paid (the “Advances”)), of all out-of-pocket expenses of the Underwriters (including but not limited to fees and disbursements of counsel to the Underwriters’ Counsel and reasonable travel) incurred in connection herewith which shall be limited to expenses which are actually incurred as allowed under FINRA Rule 5110 and 5110. In the aggregate amount of such expenses to event the Offering is completed, any Advances received by Maxim shall be reimbursed by to the Company shall not exceed $100,000at the Closing.
Appears in 1 contract
Samples: Underwriting Agreement (Vringo Inc)
Consideration; Payment of Expenses. (a) In consideration of the services to be provided for hereunder, the Company shall pay to the Underwriters or their respective designees their pro rata portion (based on the Securities purchased) of the following compensation with respect to the Securities which they are offering:
(i) A cash fee payable at Closing equal to seven percent (7%) of the aggregate gross proceeds raised in the Offering; and
(ii) The Representative’s Warrants.
(b) The If the Offering is in an amount of at least $20 million of gross proceeds and is based on a pre-money valuation of the Company of at least $80 million (on a fully diluted basis (including all ordinary shares, options, warrants and convertible securities on an as-exercised or as-converted basis, as the case may be)), the Company grants the Representative the right of first refusal for a period of twelve (12) months from the Effective Date to act as lead managing underwriter and book runner manager or minimally as a co-lead manager and co-book runner and/or co-lead placement agent with at least 50.0% of the economics; or, in the case of a three-handed deal, 33.020.0% of the economics, for any and all future equity, equity-linked or debt (excluding commercial bank debt) equity offerings undertaken by the Company or any subsidiaries of the CompanyCompany during the twelve (12) month period following the Effective Date. The Company shall provide written notice to Representative with terms of such offering and if Representative fails to accept in writing any such proposal for such public or private sale within 15 days after receipt of a written notice from the Company containing such proposal, then Representative will have no claim or right with respect to any such sale contained in any such notice. The above provision shall not be applicable to a financing solicited from a person or entity which is a current holder of the Company’s debt or equity securities.
(c) The Representative reserves the right after informing the Company to reduce any item of compensation or adjust the terms thereof as specified herein in the event that a determination shall be made by FINRA to the effect that the Underwriters’ aggregate compensation is in excess of FINRA Rules or that the terms thereof require adjustment.
(d) Whether or not the transactions contemplated by this Agreement, the Registration Statement and the Prospectus are consummated or this Agreement is terminated, the Company hereby agrees to pay all costs and expenses incident to the performance of its obligations hereunder (provided any expenses exceeding $10,000 shall be subject to the Company’s prior written approval), including the following ($35,000 of which has previously been paid by the Company):following:
(i) all expenses in connection with the preparation, printing, formatting for XXXXX EXXXX and filing of the Registration Statement, any Preliminary Prospectus and the Prospectus and any and all amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers;
(ii) all fees and expenses in connection with filings with FINRA’s Public Offering System;
(iii) all fees and expenses in connection with filing of the Registration Statement and Prospectus with the Commission;
(iv) all fees, disbursements and expenses of the Company’s counsel and accountants in connection with the registration of the Securities under the Securities Act and the Offering;
(viv) if the Offering is commenced on the Over the Counter Bulletin Board, all reasonable expenses in connection with the qualifications of the Securities for offering and sale under state or foreign securities or blue sky laws, including up to an initial payment of $10,000 15,000 for the fees of Underwriters’ Counsel in connection with such qualification and in connection with any blue sky survey undertaken by such counsel, with the balance of such Underwrtiers’ Counsel’s fees to be due at the closing of the Offering subject to a maximum of $25,000, excluding the initial $15,000 payment;
(viv) if the Offering is commenced on the Nasdaq Capital Market, NYSE or NYSE AMEX, all fees and expenses in connection with listing the Securities on the Nasdaq Capital Marketsuch market, including a one-time payment to Underwriter’s counsel of $5,000 in connection with such listing;
(viivi) all reasonable travel expenses of the Company’s officers and employees and any other expense of the Company incurred in connection with attending or hosting meetings with prospective purchasers of the Securities (“Road Show Expenses”);
(viiivii) any stock transfer taxes or other taxes incurred in connection with this Agreement or the Offering;
(ixviii) the costs associated with book building, prospectus tracking and compliance software and the cost of preparing certificates representing the Securities;
(xix) the cost and charges of any transfer agent or registrar for the Securities;
(xix) any reasonable cost and expenses in conducting satisfactory due diligence investigation and analysis background checks of the Company’s officers and directorsdirectors by a background search firm acceptable to the Representative;
(xiixi) any reasonable expenses and fees incurred by Underwriters’ Counsel; and, $25,000 of which has already been paid;
(xiii) all other costs and expenses incident to the performance of the Company obligations hereunder which are not otherwise specifically provided for in this Section 5.
(e) In addition to the costs and expenses set forth in Section 5(d) above, the Company will be responsible for: (ixii) the cost of two (2) “tombstone” advertisements to be placed in appropriate daily or weekly periodicals of the Representative’s choice (i.e., The Wall Street Journal and The New York Times); and (ii) the cost of leather bound volumes of the Offering documents and Offering commemorative lucite (or other reasonable form) memorabilia, both to be supplied to the Representative, in such quantities as Representative may reasonably request.
(f) It is understood, however, that except as provided in this Section 5, and Sections 7, 8 and 11(d) hereof, the Underwriters will pay all of their own costs and expenses. Notwithstanding anything to the contrary in this Section 5, in the event that this Agreement is terminated pursuant to Section 11(b) hereof, or subsequent to a Material Adverse Change, the Company will pay, less any advances previously paid (the “Advances”), all out-of-pocket expenses of the Underwriters (including but not limited to fees and disbursements of Underwriters’ Counsel and reasonable travel) incurred in connection herewith which shall be limited to expenses which are actually incurred as allowed under FINRA Rule 5110 and the aggregate amount of such expenses to be reimbursed by the Company shall not exceed $100,000.;
Appears in 1 contract
Samples: Underwriting Agreement (Galmed Pharmaceuticals Ltd.)
Consideration; Payment of Expenses. (a) In consideration of the services to be provided for hereunder, the Company shall pay to the Underwriters or their respective designees their pro rata portion (based on the Securities purchased) of the following compensation with respect to the Securities which they are offering:
(i) A cash fee payable at Closing an underwriting discount equal to seven percent (7%) of the aggregate gross proceeds raised in the Offering from investors introduced by the Underwriters, and four percent (4%) of the aggregate gross proceeds raised in the Offering from investors introduced by the Company;
(ii) a non-accountable expense allowance of one percent (1%) of the gross proceeds of the Offering;
(iii) an accountable expense allowance of up to $150,000, including all reasonable fees and expenses of the underwriters’ outside legal counsel, not to exceed $[75,000]; any reasonable costs and expenses incurred in conducting background checks of the Company’s officers and directors by a background search firm acceptable to the Underwriters, not to exceed $[15,000]; and the costs associated with bound volumes and mementos in such quantities as the Underwriters may reasonably request, not to exceed $[2,500]. $[75,000] has already been paid to the Underwriters as an advance against accountable expenses; and
(iiiv) The the Company shall grant to the Representative or its designated affiliates share purchase warrants (the “Representative’s Warrants.”) covering a number of shares equal to seven percent (7%) of the total number of Firm Shares, substantially in the form and content attached hereto as Annex V.
(b) The Representative’s Warrants will be non-exercisable for six (6) months after the date of commencement of sales of the Offering, and will expire three (3) years after the date of commencement of sales of the Offering. The Representative’s Warrants will be exercisable at a price equal to one hundred and twenty five percent (125%) of the public offering price of the underlying Shares in connection with the Offering. The Representative’s Warrants shall not be redeemable. The Company grants will register the Representative Shares underlying the right Representative’s Warrants under the Act and will file all necessary undertakings in connection therewith. The Representative’s Warrants and the underlying securities shall not be sold during the Offering, or sold, transferred, assigned, pledged, or hypothecated, or be the subject of first refusal any hedging, short sale, derivative, put, or call transaction that would result in the effective economic disposition of the securities by any person for a period of twelve 180 days beginning on the date of commencement of sales of the Offering, except that they may be transferred to any member participating in the Offering and the officers or partners thereof, if all securities so transferred remain subject to the lock-up restriction for the remainder of the time period. The Representative’s Warrants may be exercised as to all or a lesser number of the underlying shares, will provide for cashless exercise and will contain provisions for one demand registration of the sale of the underlying shares at the Company’s expense, an additional demand registration at the Representative’s Warrants holder’s expense, and unlimited “piggyback” registration rights for a period of three (123) months from years after the Effective Date to act as lead managing underwriter and book runner or minimally as a co-lead manager and co-book runner and/or co-lead placement agent with at least 50.0% of the economics; or, Company’s expense. The Representative’s Warrants shall further provide for adjustment in the case of a three-handed deal, 33.0% of the economics, for any number and all future equity, equity-linked or debt (excluding commercial bank debt) offerings undertaken by the Company or any subsidiaries of the Company. The Company shall provide written notice to Representative with terms price of such offering warrants (and if Representative fails the Shares underlying such Warrants) in the event of recapitalization, merger or other structural transaction to accept in writing any such proposal for such public or private sale within 15 days after receipt of a written notice from the Company containing such proposal, then Representative will have no claim or right with respect to any such sale contained in any such noticeprevent dilution.
(c) The Representative reserves Underwriters reserve the right to reduce any item of compensation or adjust the terms thereof as specified herein in the event that a determination shall be made by FINRA to the effect that the Underwriters’ aggregate compensation is in excess of FINRA Rules or that the terms thereof require adjustment.
(d) Whether or not the transactions contemplated by this Agreement, the Registration Statement and the Prospectus are consummated or this Agreement is terminated, the Company hereby agrees to pay all costs and expenses incident to the performance of its obligations hereunder (provided any expenses exceeding $10,000 shall be subject to the Company’s prior written approval)Offering, including the following ($35,000 of which has previously been paid by the Company):following:
(i) all expenses in connection with the preparation, printing, formatting for XXXXX and filing of the Registration Statement, any Preliminary Prospectus and the Prospectus and any and all amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers;
(ii) all fees and expenses in connection with filings with FINRA’s Public Offering System;
(iii) all fees and expenses in connection with filing of the Registration Statement and Prospectus with the Commission;
(iv) all fees, disbursements and expenses of the Company’s counsel and accountants in connection with the registration of the Securities under the Securities Act and the Offering;
(viv) all reasonable expenses in connection with the qualifications of the Securities for offering and sale under state or foreign securities or blue sky laws, including up to $10,000 for the fees of Underwriters’ Counsel in connection with such qualification and in connection with any blue sky survey undertaken by such counsel;
(viv) all fees and expenses in connection with listing the Securities on the Nasdaq Capital Marketa national securities exchange;
(viivi) all reasonable travel expenses of the Company’s officers officers, directors and employees and any other expense of the Company incurred in connection with attending or hosting meetings with prospective purchasers of the Securities Securities;
(“Road Show Expenses”)vii) all the road show expenses incurred by the Company;
(viii) any stock transfer taxes or other taxes incurred in connection with this Agreement or the Offering;
(ix) the costs associated with book building, prospectus tracking and compliance software and the cost of preparing certificates representing the Securities;
(x) the cost and charges of any transfer agent or registrar for the Securities;
(xi) any reasonable cost and expenses in conducting satisfactory due diligence investigation and analysis of the Company’s officers and directors;
(xii) any reasonable expenses and fees incurred by Underwriters’ Counsel; and
(xiii) all other costs and expenses incident to the performance of the Company obligations hereunder which are not otherwise specifically provided for in this Section 5.
(e) In addition to the costs and expenses set forth in Section 5(d) above, the Company will be responsible for: (i) the cost of two (2) “tombstone” advertisements to be placed in appropriate daily or weekly periodicals of the Representative’s choice (i.e., The Wall Street Journal and The New York Times); and (ii) the cost of leather bound volumes of the Offering documents and Offering commemorative lucite (or other reasonable form) memorabilia, both to be supplied to the Representative, in such quantities as Representative may reasonably request.
(f) It is understood, however, that except as provided in this Section 56, and Sections 78, 8 9 and 11(d) hereof, the Underwriters will pay all of their own costs and expenses. Notwithstanding anything to the contrary in this Section 56, in the event that this Agreement is terminated pursuant to Section 11(b) hereof, or subsequent to a Material Adverse Change, the Company will pay, less any advances previously paid which as of the date hereof is $[75,000], representing an advance to be applied towards the accountable expenses allowance (the “Advances”), all documented out-of-pocket expenses of the Underwriters (including but not limited to fees and disbursements of Underwriters’ Counsel and reasonable and accountable travel) incurred in connection herewith which shall be limited to expenses which are actually incurred as allowed under FINRA Rule 5110 and in any event, the aggregate amount of such expenses to be reimbursed by the Company shall not exceed $100,000150,000, including the Advances. To the extent that the Underwriters’ out-of-pocket expenses are less than the Advances, the Underwriters will return to the Company that portion of the Advances not offset by actual expenses.
Appears in 1 contract
Samples: Underwriting Agreement (Pop Culture Group Co., LTD)
Consideration; Payment of Expenses. (a) In consideration of the services to be provided for hereunder, the Company shall pay to the Underwriters or their respective designees their pro rata portion (based on the Securities purchased) of the following aggregate compensation with respect to the Offered Securities which they are offering:offering plus any other funds remitted by the Company to pay costs and expenses that are incurred by the Underwriters (including Underwriters’ counsel’s fees and expenses) (“Additional Advanced Amounts”).
(i) A cash fee payable at Closing An underwriting discount equal to seven percent (7%) of the aggregate gross proceeds raised in the Offering;
(ii) A non-accountable expense allowance equal to one-half percent (0.5%) of the aggregate gross proceeds raised in the Offering;
(iii) The Underwriters’ Warrants; and
(iiiv) The Representative’s Warrants.
(b) The Additionally, if the Closing occurs, the Company grants the Representative the right of first refusal for a period of twelve (12) months from the Effective Date date of commencement of sales pursuant to the Prospectus to act as lead sole managing underwriter and sole book runner or minimally as a co-lead manager and co-book runner and/or co-lead placement agent with at least 50.0% of the economics; or, in the case of a three-handed deal, 33.0% of the economics, for any and all future public or private equity, equity-linked or debt (excluding commercial bank debt) offerings undertaken by the Company Company, or any subsidiaries successor to or any subsidiary of the Company. The Company shall provide written notice to the Representative with the terms of such offering and if the Representative fails to accept in writing any such proposal for such public or private sale within 15 ten (10) business days after receipt of a such written notice from the Company containing such proposalnotice, then the Representative will have no claim or right with respect to any such sale contained in any such noticeoffering(s).
(cv) The Representative reserves the right to reduce any item of compensation or adjust the terms thereof as specified herein in the event that a determination shall be made by FINRA to the effect that the Underwriters’ aggregate compensation is in excess of FINRA Rules rules or that the terms thereof require adjustment.
(dvi) Whether or not the transactions contemplated by this Agreement, the Registration Statement and the Prospectus are consummated or this Agreement is terminated, the Company hereby agrees to pay all costs and expenses incident to the performance of its obligations hereunder following:
0 (provided any expenses exceeding $10,000 shall be subject to the Company’s prior written approval), including the following ($35,000 of which has previously been paid by the Company):
(i1) all expenses in connection with the preparation, printing, formatting for XXXXX and filing of the Registration Statement, any Preliminary Prospectus and the Prospectus and any and all exhibits, amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers;
1 (ii2) all filing fees and expenses in connection with filings with FINRA’s Public Offering System;
2 (iii) all fees and expenses in connection with filing of the Registration Statement and Prospectus with the Commission;
(iv3) all fees, disbursements and expenses of the Company’s counsel counsel, accountants and accountants other agents and representatives in connection with the registration of the Securities under the Securities Act and the Offering;
3 (v4) all reasonable expenses in connection with the qualifications of the Securities for offering and sale under state or foreign securities or blue sky lawslaws (including, including up to $10,000 for the fees of Underwriters’ Counsel in connection with such qualification without limitation, all filing and in connection with any blue sky survey undertaken by such counsel;
(vi) all fees and expenses in connection with listing the Securities on the Nasdaq Capital Market;
(vii) all reasonable travel expenses of the Company’s officers and employees and any other expense of the Company incurred in connection with attending or hosting meetings with prospective purchasers of the Securities (“Road Show Expenses”);
(viii) any stock transfer taxes incurred in connection with this Agreement or the Offering;
(ix) the cost of preparing certificates representing the Securities;
(x) the cost and charges of any transfer agent or registrar for the Securities;
(xi) any reasonable cost and expenses in conducting satisfactory due diligence investigation and analysis of the Company’s officers and directors;
(xii) any reasonable expenses and fees incurred by Underwriters’ Counsel; and
(xiii) all other costs and expenses incident to the performance of the Company obligations hereunder which are not otherwise specifically provided for in this Section 5.
(e) In addition to the costs and expenses set forth in Section 5(d) above, the Company will be responsible for: (i) the cost of two (2) “tombstone” advertisements to be placed in appropriate daily or weekly periodicals of the Representative’s choice (i.e., The Wall Street Journal and The New York Times); and (ii) the cost of leather bound volumes of the Offering documents and Offering commemorative lucite (or other reasonable form) memorabilia, both to be supplied to the Representative, in such quantities as Representative may reasonably request.
(f) It is understood, however, that except as provided in this Section 5registration fees, and Sections 7, 8 and 11(d) hereof, the Underwriters will pay all of their own costs and expenses. Notwithstanding anything to the contrary in this Section 5, in the event that this Agreement is terminated pursuant to Section 11(b) hereof, or subsequent to a Material Adverse Change, the Company will pay, less any advances previously paid (the “Advances”), all out-of-pocket expenses of the Underwriters (including but not limited to fees and disbursements of Underwriters’ Counsel and reasonable travel) incurred in connection herewith which shall be limited to expenses which are actually incurred as allowed under FINRA Rule 5110 and the aggregate amount of such expenses to be reimbursed by the Company shall not exceed $100,000.counsel;
Appears in 1 contract
Consideration; Payment of Expenses. (a) In consideration of the services to be provided for hereunder, the Company shall pay to the Underwriters or their respective designees their pro rata portion (based on the Securities purchased) of the following compensation with respect to the Securities which they are offering:
(i) A cash fee payable at Closing equal to seven percent (7%) of the aggregate gross proceeds raised in the Offering; and
(ii) The Representative’s Warrants.
(b) The Company grants the Representative the right of first refusal for a period of twelve (12) months from the Effective Date to act as lead managing underwriter and book runner or minimally as a co-lead manager and co-book runner and/or co-lead placement agent with at least 50.0% of the economics; or, in the case of a three-handed deal, 33.0% of the economics, for any and all future equity, equity-linked or debt (excluding commercial bank debt) offerings undertaken by the Company or any subsidiaries of the Company. The Company shall provide written notice to Representative with terms of such offering and if Representative fails to accept in writing any such proposal for such public or private sale within 15 days after receipt of a written notice from the Company containing such proposal, then Representative will have no claim or right with respect to any such sale contained in any such notice.
(c) The Representative reserves the right to reduce any item of compensation or adjust the terms thereof as specified herein in the event that a determination shall be made by FINRA to the effect that the Underwriters’ aggregate compensation is in excess of FINRA Rules or that the terms thereof require adjustment.
(db) Whether At Closing, the Company will reimburse Rxxx Capital Partners, LLC for its out-of-pocket expenses incurred in connection with the purchase and sale of the Securities. In addition, on the Closing Date and Option Closing Date, if applicable, the Company hereby agrees to issue and sell to the Underwriters, for an aggregate purchase price of $100, warrants to purchase a number of Shares equal to 5% of the Firm Shares and Additional Shares, as the case may be. The warrants shall be exercisable, in whole or in part, commencing on a date which is one (1) year after the Effective Date and expiring on the five-year anniversary of the Effective Date, at an initial exercise price per share of Common Stock of $[___], which is equal to 120% of the initial public offering price of the Firm Securities, will provide for cashless exercise at all times and, in accordance with FINRA Rule 5110(g)(1), may not be sold, transferred, assigned, pledged or hypothecated, or be the subject of any hedging, short sale, derivative, put or call transaction that would result in the effective economic disposition of such warrant by any person for a period of 180 days immediately following the effective date of the registration statement, except as provided in FINRA Rule 5110(g)(2).
(c) Subject to Section 11(d), whether or not the transactions contemplated by this Agreement, the Registration Statement and the Prospectus are consummated or this Agreement is terminated, the Company hereby agrees to pay all costs and expenses incident to the performance of its obligations hereunder (provided any expenses exceeding $10,000 shall be subject to the Company’s prior written approval)hereunder, including the following ($35,000 of which has previously been paid by the Company):following:
(i) all expenses in connection with the preparation, printing, formatting for XXXXX EXXXX and filing of the Registration Statement, any Preliminary Prospectus Prospectus, General Disclosure Package and the Prospectus and any and all exhibits, amendments and supplements thereto and the mailing and delivering of a sufficient quantity of copies thereof to the Underwriters and dealersdealers as the Representative may reasonably request;
(ii) all fees and expenses in connection with filings with FINRA’s the filing on the FINRA Public Offering System;
(iii) all fees and expenses in connection with filing of the Registration Statement and Prospectus with the Commission;
(iv) all the fees, disbursements and expenses of the Company’s counsel and accountants in connection with the registration of the Public Securities under the Securities Act and the Offering;
(v) all reasonable expenses in connection with the qualifications of the Public Securities for offering and sale under state or foreign securities or blue sky laws, including up to $10,000 the fees and disbursements of counsel for the fees of Underwriters’ Counsel Underwriters in connection with such qualification and in connection with any blue sky survey undertaken by such counsel;
(vi) all fees and expenses in connection with listing the Securities on the Nasdaq Capital Market;
(vii) all reasonable travel expenses of the Company’s officers and employees and any other expense of the Company incurred in connection with attending or hosting meetings with prospective purchasers of the Securities (“Road Show Expenses”)Securities;
(viiivii) any stock transfer taxes incurred in connection with this Agreement or the Offering;
(ixviii) the cost of preparing stock certificates representing the Securities;
(xix) the cost and charges of any transfer agent or registrar for the Securities;
(xi) any reasonable cost and expenses in conducting satisfactory due diligence investigation and analysis of the Company’s officers and directors;
(xii) any reasonable expenses and fees incurred by Underwriters’ Counsel; and
(xiiix) all other costs and expenses incident to the performance of the Company obligations hereunder which are not otherwise specifically provided for in this Section 5.; and
(exi) In addition up to the costs and expenses set forth in Section 5(d) above, the Company will be responsible for: (i) the cost an aggregate of two (2) “tombstone” advertisements to be placed in appropriate daily or weekly periodicals of the Representative’s choice (i.e., The Wall Street Journal and The New York Times); and (ii) the cost of leather bound volumes of the Offering documents and Offering commemorative lucite (or other reasonable form) memorabilia, both to be supplied to the Representative, in such quantities as Representative may reasonably request.
(f) It is understood, however, that except as provided in this Section 5, and Sections 7, 8 and 11(d) hereof, the Underwriters will pay all of their own costs and expenses. Notwithstanding anything to the contrary in this Section 5, in the event that this Agreement is terminated pursuant to Section 11(b) hereof, or subsequent to a Material Adverse Change, the Company will pay, less any advances previously paid (the “Advances”), all $135,000 for out-of-pocket expenses of incurred by the Underwriters (in connection with the Offering, including but not limited to the cost of counsel for the Underwriters, and including the reasonable fees and disbursements of Underwriters’ Counsel and reasonable travel) incurred counsel for the Underwriters in connection herewith which shall be limited to expenses which are actually incurred as allowed under with the filing on the FINRA Rule 5110 and the aggregate amount of such expenses to be reimbursed by the Company shall not exceed $100,000Public Offering System.
Appears in 1 contract
Samples: Underwriting Agreement (Enerpulse Technologies, Inc.)
Consideration; Payment of Expenses. (a) In consideration of the services to be provided for hereunder, the Company shall pay to the Underwriters or their respective designees their pro rata portion (based on the Public Securities purchased) of the following aggregate compensation with respect to the Public Securities which they are offering:
(i1) A cash fee payable at Closing An underwriting discount equal to seven percent (7%) of the aggregate gross proceeds raised in the Offering; andoffering of Public Securities;
(ii2) The Representative’s Warrants.;
(b3) The Additionally, if the Closing occurs, the Company grants the Representative the right of first refusal for a period of twelve eighteen (1218) months from the Effective Date closing of the Offering to act as lead sole managing underwriter and sole book runner or minimally as a co-lead manager and co-book runner and/or co-lead placement agent with at least 50.0% of the economics; or, in the case of a three-handed deal, 33.0% of the economics, for any and all future public or private equity, equity-linked or debt (excluding commercial bank debt) offerings undertaken by the Company Company, or any subsidiaries of successor to the Company. The Company shall provide written notice to the Representative with the terms of such offering and if the Representative fails to accept in writing any such proposal for such public or private sale within 15 ten (10) business days after receipt of a such written notice from the Company containing such proposalnotice, then the Representative will have no claim or right with respect to any such sale contained in any such notice.offering(s); and
(c4) The Subject to FINRA Rule 5110(g)(5)(B), the Representative reserves the right shall be entitled to reduce any item of compensation or adjust the terms thereof as specified herein under Section 4(m)(1) hereof, calculated in the event manner set forth therein, with respect to any public or private offering of securities or other financing or capital-raising transaction of any kind (“Tail Financing”) to the extent that a determination such financing or capital is provided to the Company by investors whom the Representative had contacted during the Engagement Period (excluding any financing or capital provided to the Company by investors whom the Company introduced to the Representative, as listed on Schedule B, attached hereto) or introduced to the Company during the Engagement Period, if such Tail Financing is consummated at any time within the twelve (12)-month period following the expiration or termination of that certain engagement agreement by and between the Company and the Representative, dated as of December 8, 2023 (“Engagement Agreement”). If the Tail Financing is not an underwritten offering, the amount of the underwriting discount specified in Section 4(m)(1) shall be made by FINRA to the effect that the Underwriters’ aggregate compensation is in excess of FINRA Rules or that the terms thereof require adjustment.
(d) Whether or not the transactions contemplated by this Agreement, the Registration Statement and the Prospectus are consummated or this Agreement is terminated, the Company hereby agrees to pay all costs and expenses incident to the performance of its obligations hereunder (provided any expenses exceeding $10,000 shall be subject to the Company’s prior written approval), including the following ($35,000 of which has previously been paid by the Company):
Company to the Representative as a cash fee from the proceeds of the Closing. “Engagement Period” shall mean the period beginning on December 8, 2023, and ending on the earliest of (i) all expenses in connection with the preparationDecember 8, printing2024, formatting for XXXXX and filing of the Registration Statement, any Preliminary Prospectus and the Prospectus and any and all amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers;
(ii) all fees and expenses in connection with filings with FINRA’s Public Offering System;
(iii) all fees and expenses in connection with filing of the Registration Statement and Prospectus with the Commission;
(iv) all fees, disbursements and expenses of the Company’s counsel and accountants in connection with the registration of the Securities under the Securities Act and the Offering;
(v) all reasonable expenses in connection with the qualifications of the Securities for offering and sale under state or foreign securities or blue sky laws, including up to $10,000 for the fees of Underwriters’ Counsel in connection with such qualification and in connection with any blue sky survey undertaken by such counsel;
(vi) all fees and expenses in connection with listing the Securities on the Nasdaq Capital Market;
(vii) all reasonable travel expenses of the Company’s officers and employees and any other expense of the Company incurred in connection with attending or hosting meetings with prospective purchasers of the Securities (“Road Show Expenses”);
(viii) any stock transfer taxes incurred in connection with this Agreement or the Offering;
(ix) the cost of preparing certificates representing the Securities;
(x) the cost and charges of any transfer agent or registrar for the Securities;
(xi) any reasonable cost and expenses in conducting satisfactory due diligence investigation and analysis of the Company’s officers and directors;
(xii) any reasonable expenses and fees incurred by Underwriters’ Counsel; and
(xiii) all other costs and expenses incident to the performance of the Company obligations hereunder which are not otherwise specifically provided for in this Section 5.
(e) In addition to the costs and expenses set forth in Section 5(d) above, the Company will be responsible for: (i) the cost of two (2) “tombstone” advertisements to be placed in appropriate daily or weekly periodicals of the Representative’s choice (i.e., The Wall Street Journal and The New York Times); and (ii) the cost of leather bound volumes of date that the Offering documents and Offering commemorative lucite (or other reasonable form) memorabilia, both to be supplied Company terminates the Engagement Agreement pursuant to the Representative, in such quantities as Representative may reasonably requestterms therein.
(f) It is understood, however, that except as provided in this Section 5, and Sections 7, 8 and 11(d) hereof, the Underwriters will pay all of their own costs and expenses. Notwithstanding anything to the contrary in this Section 5, in the event that this Agreement is terminated pursuant to Section 11(b) hereof, or subsequent to a Material Adverse Change, the Company will pay, less any advances previously paid (the “Advances”), all out-of-pocket expenses of the Underwriters (including but not limited to fees and disbursements of Underwriters’ Counsel and reasonable travel) incurred in connection herewith which shall be limited to expenses which are actually incurred as allowed under FINRA Rule 5110 and the aggregate amount of such expenses to be reimbursed by the Company shall not exceed $100,000.
Appears in 1 contract
Samples: Underwriting Agreement (Chromocell Therapeutics Corp)
Consideration; Payment of Expenses. (a) In consideration of the services to be provided for hereunder, the Company shall pay to the Underwriters or their respective designees their pro rata portion (based on the Securities purchased) of the following compensation with respect to the Securities which they are offering:
(i) A cash fee payable at Closing an underwriting discount equal to seven percent (7%) of the aggregate gross proceeds raised in the Offering;
(ii) a non-accountable expense allowance of one percent (1%) of the gross proceeds of the Offering;
(iii) an accountable expense allowance of up to $150,000, including all reasonable fees and expenses of the Underwriters’ outside legal counsel; any reasonable costs and expenses incurred in conducting background checks of the Company’s officers and directors by a background search firm acceptable to the Underwriters; and the costs associated with bound volumes and mementos in such quantities as the Underwriters may reasonably request. $150,000 has already been paid to the Underwriters as an advance against accountable expenses; and
(iiiv) The Representative’s the Company shall grant to the Underwriters or its designated affiliates share purchase warrants (the “Underwriters’ Warrants.”) covering a number of shares equal to five percent (5%) of the total number of ADSs sold in the Offering, substantially in the form and content attached hereto as Annex V.
(b) The Company grants the Representative the right of first refusal Underwriters’ Warrants will be non-exercisable for a period of twelve (12) months from after the commencement of sales of the Offering and will expire three (3) years after the commencement of sales of the Offering. The Underwriters’ Warrants will be exercisable at a price equal to one hundred and twenty five percent (125%) of the public offering price of the underlying ADSs in connection with the Offering. The Underwriters’ Warrants shall not be redeemable. The Company will register the ADSs underlying the Underwriters’ Warrants under the Act and will file all necessary undertakings in connection therewith. The Underwriters’ Warrants shall not be sold during the Offering, or sold, transferred, assigned, pledged, or hypothecated, or be the subject of any hedging, short sale, derivative, put, or call transaction that would result in the effective economic disposition of the securities by any person for a period of three hundred and sixty (360) days immediately following the date of commencement of sales of the Offering, except that they may be transferred to any member participating in the Offering and the officers or partners thereof, if all securities so transferred remain subject to the lock-up restriction for the remainder of the time period. The Underwriters’ Warrants may be exercised as to all or a lesser number of the underlying ADSs, will provide for cashless exercise and will contain provisions for one demand registration of the sale of the underlying ADSs at the Company’s expense, an additional demand registration at the Underwriters’ Warrants holder’s expense, and unlimited “piggyback” registration rights for a period of three (3) years after the Effective Date to act as lead managing underwriter and book runner or minimally as a co-lead manager and co-book runner and/or co-lead placement agent with at least 50.0% of the economics; or, Company’s expense. The Underwriters’ Warrants shall further provide for adjustment in the case of a three-handed deal, 33.0% of the economics, for any number and all future equity, equity-linked or debt (excluding commercial bank debt) offerings undertaken by the Company or any subsidiaries of the Company. The Company shall provide written notice to Representative with terms price of such offering warrants (and if Representative fails the Shares underlying such Warrants) in the event of recapitalization, merger or other structural transaction to accept in writing any such proposal for such public or private sale within 15 days after receipt of a written notice from the Company containing such proposal, then Representative will have no claim or right with respect to any such sale contained in any such noticeprevent dilution.
(c) The Representative Underwriters reserves the right to reduce any item of compensation or adjust the terms thereof as specified herein in the event that a determination shall be made by FINRA to the effect that the Underwriters’ aggregate compensation is in excess of FINRA Rules or that the terms thereof require adjustment.
(d) Whether or not the transactions contemplated by this Agreement, the Registration Statement and the Prospectus are consummated or this Agreement is terminated, the Company hereby agrees to pay all costs and expenses incident to the performance of its obligations hereunder (provided any expenses exceeding $10,000 shall be subject to the Company’s prior written approval)Offering, including the following ($35,000 of which has previously been paid by the Company):following:
(i) all expenses in connection with the preparation, printing, formatting for XXXXX and filing of the Registration Statement, any Preliminary Prospectus and the Prospectus and any and all amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers;
(ii) all fees and expenses in connection with filings with FINRA’s Public Offering System;
(iii) all fees and expenses in connection with filing of the Registration Statement and Prospectus with the Commission;
(iv) all fees, disbursements and expenses of the Company’s counsel and accountants in connection with the registration of the Securities under the Securities Act and the Offering;
(viv) all reasonable expenses in connection with the qualifications of the Securities for offering and sale under state or foreign securities or blue sky laws, including up to $10,000 for the fees of Underwriters’ Counsel in connection with such qualification and in connection with any blue sky survey undertaken by such counsel;
(viv) all fees and expenses in connection with listing the Securities on the Nasdaq Capital Marketa national securities exchange;
(viivi) all reasonable travel expenses of the Company’s officers officers, directors and employees and any other expense of the Company incurred in connection with attending or hosting meetings with prospective purchasers of the Securities Securities;
(“Road Show Expenses”)vii) all the road show expenses incurred by the Company;
(viii) any stock transfer taxes or other taxes incurred in connection with this Agreement or the Offering;
(ix) the costs associated with book building, prospectus tracking and compliance software and the cost of preparing certificates representing the Securities;
(x) the cost and charges of any transfer agent or registrar for the Securities;
(xi) any reasonable cost and expenses in conducting satisfactory due diligence investigation and analysis of the Company’s officers and directors;
(xii) any reasonable expenses and fees incurred by Underwriters’ Counsel; and
(xiii) all other costs and expenses incident to the performance of the Company obligations hereunder which are not otherwise specifically provided for in this Section 5.
(e) In addition to the costs and expenses set forth in Section 5(d) above, the Company will be responsible for: (i) the cost of two (2) “tombstone” advertisements to be placed in appropriate daily or weekly periodicals of the Representative’s choice (i.e., The Wall Street Journal and The New York Times); and (ii) the cost of leather bound volumes of the Offering documents and Offering commemorative lucite (or other reasonable form) memorabilia, both to be supplied to the Representative, in such quantities as Representative may reasonably request.
(f) It is understood, however, that except as provided in this Section 56, and Sections 78, 8 9 and 11(d) hereof, the Underwriters will pay all of their own costs and expenses. Notwithstanding anything to the contrary in this Section 56, in the event that this Agreement is terminated pursuant to Section 11(b) hereof, or subsequent to a Material Adverse Change, the Company will pay, less any advances previously paid which as of the date hereof is $150,000, representing an advance to be applied towards the accountable expenses allowance (the “Advances”), all documented out-of-pocket expenses of the Underwriters (including but not limited to fees and disbursements of Underwriters’ Counsel and reasonable and accountable travel) incurred in connection herewith which shall be limited to expenses which are actually incurred as allowed under FINRA Rule 5110 and in any event, the aggregate amount of such expenses to be reimbursed by the Company shall not exceed $100,000150,000, including the Advances. To the extent that the Underwriters’ out-of-pocket expenses are less than the Advances, the Underwriters will return to the Company that portion of the Advances not offset by actual expenses.
Appears in 1 contract
Consideration; Payment of Expenses. (a) In consideration of the services to be provided for hereunder, the Company shall pay to the Underwriters or their respective designees their pro rata portion (based on the Securities purchased) of the following compensation with respect to the Securities Shares which they are offering:
(i) A cash fee payable at Closing equal to seven An underwriting discount of eight percent (78%) of the aggregate gross proceeds raised in of the OfferingOffering (exclusive of any gross proceeds that originate from Sigma Tau Finanziaria, S.p.A. or any of its Affiliates (collectively, “Sigma Tau”) with respect to which amount no underwriting discount shall be payable); and
(ii) The Representative’s Warrants.
(b) The If the Offering results in net proceeds to the Company (after underwriting discounts and the payment of the Company expenses related to the Offering) of at least $5.0 million, the Company grants the Representative the right of first refusal for a period of twelve (12) months from the Effective Date participation to act as lead managing underwriter and book runner or minimally as a co-lead manager and co-book runner and/or or co-lead placement agent with at least 50.0% fifty percent (50%) of the economics; or, or in the case of a three-handed deal, 33.0% deal thirty-three percent (33%) of the economicseconomics for a period of six (6) months from the Closing Date, for any and all future equitypublic and private equity offerings and any convertible debt offerings, equity-linked or debt (excluding commercial ordinary course of business financings such as bank debt) offerings undertaken lines of credit, accounts receivable, factoring and financing generated by the Company or any subsidiaries successor to or any subsidiary of the Company. The Company shall provide written notice to Representative with terms of such offering and if Representative fails to accept in writing any such proposal for such public or private sale within 15 twenty (20) days after receipt of a written notice from the Company containing such proposal, then Representative will have no claim or right with respect to any such sale contained in any such notice.
(c) The Representative reserves the right to reduce any item of compensation or adjust the terms thereof as specified herein in the event that a determination shall be made by FINRA to the effect that the Underwriters’ aggregate compensation is in excess of FINRA Rules or that the terms thereof require adjustment.
(d) Whether or not the transactions contemplated by this Agreement, the Registration Statement and the Prospectus are consummated or this Agreement is terminated, the Company hereby agrees to pay all costs and expenses incident to the performance of its obligations hereunder (provided any expenses exceeding $10,000 shall be subject to the Company’s prior written approval)hereunder, including the following ($35,000 of which has previously been paid by the Company):following:
(i) all expenses in connection with the preparation, printing, formatting for XXXXX and filing of the Registration Statement, any Preliminary Prospectus and the Prospectus and any and all amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers;
(ii) all fees and expenses in connection with the filing of Corporate Offerings Business & Regulatory Analysis (“COBRADesk”) filings with FINRA’s Public Offering System;
(iii) all fees and expenses in connection with filing of the Registration Statement and Prospectus with the Commission;
(iv) all the fees, disbursements and expenses of the Company’s counsel and accountants in connection with the registration of the Securities under the Securities Act and the Offering;
(v) all reasonable expenses in connection with the qualifications of the Securities Shares for offering and sale under state or foreign securities or blue sky laws, including up to $10,000 the fees and disbursements of counsel for the fees of Underwriters’ Counsel Underwriters in connection with such qualification and in connection with any blue sky by survey undertaken by such counsel;
; (vi) all fees and expenses in connection with listing the Securities on the Nasdaq Capital MarketNYSE Amex stock exchange;
(vii) all reasonable travel expenses of the Company’s officers and employees and any other expense of the Company incurred in connection with attending or hosting meetings with prospective purchasers of the Securities (“Road Show Expenses”);
(viii) any stock transfer taxes incurred in connection with this Agreement or the Offering;
(ix) the cost of preparing certificates representing the Securities;
(x) the cost and charges of any transfer agent or registrar for the Securities;
(xi) any reasonable cost and expenses in conducting satisfactory due diligence investigation and analysis of the Company’s officers and directors;
(xii) any reasonable expenses and fees incurred by Underwriters’ Counsel; and
(xiii) all other costs and expenses incident to the performance of the Company obligations hereunder which are not otherwise specifically provided for in this Section 5.
(e) In addition to the costs and expenses set forth in Section 5(d) above, the Company will be responsible for: (i) the cost of two (2) “tombstone” advertisements to be placed in appropriate daily or weekly periodicals of the Representative’s choice (i.e., The Wall Street Journal and The New York Times); and (ii) the cost of leather bound volumes of the Offering documents and Offering commemorative lucite (or other reasonable form) memorabilia, both to be supplied to the Representative, in such quantities as Representative may reasonably request.
(f) It is understood, however, that except as provided in this Section 5, and Sections 7, 8 and 11(d) hereof, the Underwriters will pay all of their own costs and expenses. Notwithstanding anything to the contrary in this Section 5, in the event that this Agreement is terminated pursuant to Section 11(b) hereof, or subsequent to a Material Adverse Change, the Company will pay, less any advances previously paid (the “Advances”), all out-of-pocket expenses of the Underwriters (including but not limited to fees and disbursements of Underwriters’ Counsel and reasonable travel) incurred in connection herewith which shall be limited to expenses which are actually incurred as allowed under FINRA Rule 5110 and the aggregate amount of such expenses to be reimbursed by the Company shall not exceed $100,000.
Appears in 1 contract
Samples: Underwriting Agreement (Regenerx Biopharmaceuticals Inc)
Consideration; Payment of Expenses. (a) In consideration of the services to be provided for hereunder, the Company shall pay to the Underwriters Underwriter or their respective designees their its designee(s) the following compensation (or pro rata portion (based on the Securities purchasedthereof, if applicable) of the following compensation with respect to the Securities which they are offeringpurchased from the Company in this Offering:
(i) A cash fee payable at Closing an underwriting discount equal to seven six percent (76.0%) of the aggregate gross proceeds (inclusive the Over-allotment Option to purchase the Additional Shares) raised in the Offering;
(ii) a non-accountable expense allowance of one percent (1.0%) of the gross proceeds of the Offering;
(iii) an accountable expense allowance of up to $225,000, of which $200,000 has already been paid to the Underwriter as an advance against accountable expenses; and
(iiiv) The the Company shall grant to the Underwriter or its designated affiliates share purchase warrants (the “Representative’s Warrants”) covering a number of shares equal to seven percent (7.0%) of the total number of Firm Shares and Additional Shares sold in this Offering.
(b) In compliance with FINRA Rule 5110(e)(1), the Representative’s Warrants and the underlying securities will be locked up for 180 days following the date of commencement of sales of the Offering and will expire three (3) years after the Effective Date, subject to certain exceptions as set forth in FINRA Rule 5110(e)(2). The Representative’s Warrants are non-exercisable for six (6) months after the close of the Offering and will expire three (3) years after the sales of the Offering. The Representative’s Warrants will be exercisable at a price equal to one hundred and fifteen percent (125%) of the public offering price of the underlying Ordinary Shares in connection with the Offering. The Representative’s Warrants shall not be redeemable. The Company grants will register the Representative Ordinary Shares underlying the right Representative’s Warrants under the Act and will file all necessary undertakings in connection therewith. The Representative’s Warrants and the underlying securities shall not be sold during the Offering, or sold, transferred, assigned, pledged, or hypothecated, or be the subject of first refusal any hedging, short sale, derivative, put, or call transaction that would result in the effective economic disposition of the securities by any person for a period of twelve 180 days beginning on the date of commencement of sales of the Offering, except that they may be transferred to any member participating in the Offering and the officers or partners thereof, if all securities so transferred remain subject to the lock-up restriction for the remainder of the time period. The Underwriter will have the option to exercise, transfer or assign the Representative’s Warrants at any time, provided that the underlying securities shall not be transferred during the lock-up period; i.e., the Shares underlying the Representative’s Warrants shall remain subject to the 180-day lock-up period. The Representative’s Warrants may be exercised as to all or a lesser number of the underlying Ordinary Shares, will provide for cashless exercise and will contain provisions for one demand registration of the sale of the underlying Ordinary Share at the Company’s expense, an additional demand registration at the Representative’s Warrants holder’s expense, and unlimited “piggyback” registration rights at the Company’s expense, each with a duration of no more than three (123) months years from the Effective Date to act as lead managing underwriter and book runner or minimally as a co-lead manager and co-book runner and/or co-lead placement agent with at least 50.0% date of commencement of sales of the economics; or, offering in compliance with FINRA Rule 5110(g)(8)(D). The Representative’s Warrants shall further provide for adjustment in the case number and price of a three-handed dealsuch warrants (and the Ordinary Share underlying such Warrants) in the event of recapitalization, 33.0% merger or other structural transaction to prevent dilution. In the event that the Company chooses to disengage or terminate Network 1 Financial Securities, Inc. as its Underwriter prior to the effectiveness of the economics, for any and all future equity, equity-linked or debt (excluding commercial bank debt) offerings undertaken by Registration Statement but after the Company or any subsidiaries initial filing of the Company. The Company shall provide written notice Registration Statement with the SEC, Network 1 Financial Securities, Inc. will be due the full amount of the Representative’s Warrants that would be due to Representative with terms them at the Closing Date of such offering and if Representative fails to accept in writing any such proposal for such public or private sale within 15 days after receipt of a written notice from the Company containing such proposal, then Representative will have no claim or right with respect to any such sale contained in any such noticeIPO.
(c) The Representative Underwriter reserves the right to reduce any item of compensation or adjust the terms thereof as specified herein in the event that a determination shall be made by FINRA to the effect that the UnderwritersUnderwriter’ aggregate compensation is in excess of FINRA Rules or that the terms thereof require adjustment.
(d) Whether or not the transactions contemplated by this Agreement, the Registration Statement and the Prospectus are consummated or this Agreement is terminated, the Company hereby agrees to pay all costs and expenses incident to the performance of its obligations hereunder (provided any expenses exceeding $10,000 shall be subject to the Company’s prior written approval)Offering, including the following ($35,000 of which has previously been paid by the Company):following:
(i) all expenses in connection with the preparation, printing, formatting for XXXXX and filing of the Registration Statement, any Preliminary Prospectus and the Prospectus and any and all amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters Underwriter and dealers;
(ii) all fees and expenses in connection with filings with FINRA’s Public Offering System;
(iii) all fees and expenses in connection with filing of the Registration Statement and Prospectus with the Commission;
(iv) all fees, disbursements and expenses of the Company’s counsel and accountants in connection with the registration of the Securities under the Securities Act and the Offering;
(viv) all reasonable expenses in connection with the qualifications of the Securities for offering and sale under state or foreign securities or blue sky laws, including up to $10,000 for the fees of Underwriters’ Counsel in connection with such qualification and in connection with any blue sky survey undertaken by such counsel;
(viv) all fees and expenses in connection with listing the Securities on the Nasdaq Capital Marketa national securities exchange;
(viivi) all reasonable travel expenses of the Company’s officers officers, directors and employees and any other expense of the Company incurred in connection with attending or hosting meetings with prospective purchasers of the Securities Securities;
(vii) all fees and expenses in connection with any “Road Show Expenses”)due diligence” meetings;
(viii) all the road show expenses incurred by the Company;
(ix) any stock transfer taxes or other taxes incurred in connection with this Agreement or the Offering;
(ixx) the costs associated with book building, prospectus tracking and compliance software and the cost of preparing certificates representing the Securities;
(xxi) the cost and charges of any transfer agent or registrar for the Securities;
(xixii) any reasonable cost costs and expenses incurred in conducting satisfactory due diligence investigation and analysis background checks of the Company’s officers and directorsdirectors by a background search firm acceptable to the Underwriter, not to exceed $15,000;
(xiixiii) any reasonable expenses the costs associated with bound volumes and fees incurred by Underwriters’ Counselmementos in such quantities as the Underwriter may reasonably request, not to exceed $2,500; and
(xiiixiv) all other costs fees and expenses incident to the performance of the Company obligations hereunder which are Underwriter’s legal counsel, not otherwise specifically provided for in this Section 5to exceed $75,000.
(e) In addition to the costs and expenses set forth in Section 5(d) above, the Company will be responsible for: (i) the cost of two (2) “tombstone” advertisements to be placed in appropriate daily or weekly periodicals of the Representative’s choice (i.e., The Wall Street Journal and The New York Times); and (ii) the cost of leather bound volumes of the Offering documents and Offering commemorative lucite (or other reasonable form) memorabilia, both to be supplied to the Representative, in such quantities as Representative may reasonably request.
(f) It is understood, however, that except as provided in this Section 56, and Sections 78, 8 9 and 11(d) hereof, the Underwriters Underwriter will pay all of their own costs and expenses. Notwithstanding anything to the contrary in this Section 56, in the event that this Agreement is terminated pursuant to Section 11(b12(b) hereof, or subsequent to a Material Adverse Change, the Company will pay, less any advances previously paid which as of the date hereof is $200,000, including $75,000 as an advance to be applied towards the accountable expenses allowance (the “AdvancesAdvance”), all $50,000 paid upon the first confidential filing of the Registration Statement, and $75,000 paid at the time the Company files the Registration Statement publicly. On the Closing Date, the Company shall pay the Underwriter $25,000 such that as of the Closing Date the Company shall have paid the Underwriter a total of no more than $225,000 in respect of such accountable expenses pursuant to this Section 6(e). All documented out-of-pocket expenses of the Underwriters Underwriter (including but not limited to fees and disbursements of Underwriters’ Underwriter’s Counsel and reasonable and accountable travel) incurred in connection herewith which shall be limited to expenses which are actually incurred as allowed under FINRA Rule 5110 and in any event, the aggregate amount of such expenses to be reimbursed by the Company shall not exceed $100,000225,000, including the Advances. To the extent that the Underwriter’ out-of-pocket expenses are less than the Advance, the Underwriter will return to the Company that portion of the Advances not offset by actual expenses in accordance with FINRA Rule 5110(g)(4)(A).
Appears in 1 contract
Consideration; Payment of Expenses. (a) In consideration of the services to be provided for hereunder, the Company shall pay to the Underwriters or their respective designees their pro rata portion (based on the Securities purchased) of the following aggregate compensation with respect to the Offered Securities which they are offering:offering less an amount equal to the Advance plus any other funds remitted by the Company to pay costs and expenses that are incurred by the Underwriters (including Underwriters’ counsel’s fees and expenses) (“Additional Advanced Amounts”).
(i) A cash fee payable at Closing An underwriting discount equal to seven eight percent (78%) of the aggregate gross proceeds raised in the Offering; and
(ii) The Representative’s Warrants.
(b) The Additionally, if the Closing occurs, the Company grants the Representative the right of first refusal for a period of twelve (12) months from the Effective Date date of commencement of sales pursuant to the Prospectus to act as lead managing underwriter and sole book runner or minimally as a co-lead manager and co-book runner and/or co-lead placement agent with at least 50.0% of the economics; or, in the case of a three-handed deal, 33.0% of the economics, for any and all future equity, public or private equity or equity-linked or debt (excluding commercial bank debt) offerings undertaken by the Company, but excluding any private placement in which the Company does not use an underwriter or any subsidiaries of the Companyplacement agent. The Company shall provide written notice to the Representative with the terms of such offering and if the Representative fails to accept in writing any such proposal for such public or private sale within 15 ten (10) days after receipt of a such written notice from the Company containing such proposalnotice, then the Representative will have no claim or right with respect to any such sale contained in any such noticeoffering(s).
(ciii) The Representative reserves the right to reduce any item of compensation or adjust the terms thereof as specified herein in the event that a determination shall be made by FINRA to the effect that the Underwriters’ aggregate compensation is in excess of FINRA Rules rules or that the terms thereof require adjustment.
(div) Whether or not the transactions contemplated by this Agreement, the Registration Statement and the Prospectus are consummated or this Agreement is terminated, the Company hereby agrees to pay all costs and expenses incident to the performance of its obligations hereunder (provided any expenses exceeding $10,000 shall be subject to the Company’s prior written approval), including the following ($35,000 of which has previously been paid by the Company):following:
(i1) all expenses in connection with the preparation, printing, formatting for XXXXX EXXXX and filing of the Registration Statement, any Preliminary Prospectus and the Prospectus and any and all exhibits, amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers;
(ii2) all filing fees and expenses in connection with filings with FINRA’s Public Offering System;
(iii) all fees and expenses in connection with filing of the Registration Statement and Prospectus with the Commission;
(iv3) all fees, disbursements and expenses of the Company’s counsel counsel, accountants and accountants other agents and representatives in connection with the registration of the Securities under the Securities Act and the Offering;
(v4) all reasonable expenses in connection with the qualifications of the Securities for offering and sale under state or foreign securities or blue sky lawslaws (including, including up to $10,000 for without limitation, all filing and registration fees, and the fees and disbursements of Underwriters’ Counsel in connection with such qualification and in connection with any blue sky survey undertaken by such counsel;
(vi5) all fees and expenses in connection with listing the Securities on the Nasdaq Capital Marketa national securities exchange;
(vii6) all reasonable expenses, including travel expenses and lodging expenses, of the Company’s officers officers, directors and employees and any other expense of the Company incurred in connection with attending or hosting meetings with prospective purchasers of the Securities (“Road Show Expenses”)and any fees and expenses associated with the i-Deal system and NetRoadshow;
(viii7) any stock transfer taxes or other taxes incurred in connection with this Agreement or the Offeringoffering, including any stock transfer taxes payable upon the transfer of securities to the Underwriters;
(ix) 8) the cost of preparing costs associated with preparing, printing and delivering certificates representing the Securities;
(x9) the cost and charges of any transfer agent or registrar for the Securities;
(xi10) any reasonable cost and expenses in conducting satisfactory due diligence investigation and analysis of subject to the Company’s officers and directors;
following proviso, other costs (xii) any reasonable expenses and fees incurred by including Underwriters’ Counsel; and
(xiiicounsel’s fees and expenses) all other costs and expenses incident to the performance of the Company obligations hereunder which Offering that are not otherwise specifically provided for in this Section 5.4(k);
(e11) In addition costs relating to the costs and expenses set forth in Section 5(d) above, the Company will be responsible for: (i) the cost of two (2) “tombstone” advertisements to be placed in appropriate daily or weekly periodicals background checks of the RepresentativeCompany’s choice (i.e., The Wall Street Journal officers and The New York Times); and (ii) the cost of leather bound volumes of the Offering documents and Offering commemorative lucite (or other reasonable form) memorabilia, both to be supplied to the Representative, in such quantities as Representative may reasonably request.
(f) It is understood, however, that except as provided in this Section 5, and Sections 7, 8 and 11(d) hereof, the Underwriters will pay all of their own costs and expenses. Notwithstanding anything to the contrary in this Section 5, in the event that this Agreement is terminated pursuant to Section 11(b) hereof, or subsequent to a Material Adverse Change, the Company will pay, less any advances previously paid (the “Advances”), all out-of-pocket expenses of the Underwriters (including but not limited to fees and disbursements of Underwriters’ Counsel and reasonable travel) incurred in connection herewith which shall be limited to expenses which are actually incurred as allowed under FINRA Rule 5110 and the aggregate amount of such expenses to be reimbursed by the Company shall not exceed $100,000.directors;
Appears in 1 contract
Consideration; Payment of Expenses. (a) In consideration of the services to be provided for hereunder, the Company shall pay to the Underwriters Underwriter or their respective designees their its designee(s) the following compensation (or pro rata portion (based on the Securities purchasedthereof, if applicable) of the following compensation with respect to the Securities which they are offeringpurchased from the Company in this Offering:
(i) A cash fee payable at Closing an underwriting discount equal to seven percent (7%) of the aggregate gross proceeds raised in the Offering;
(ii) a non-accountable expense allowance of one percent (1%) of the gross proceeds of the Offering;
(iii) an accountable expense allowance of up to $150,000, of which $[130,000] has already been paid to the Underwriter as an advance against accountable expenses; and
(iiiv) The Representativethe Company shall grant to the Underwriter or its designated affiliates share purchase warrants (the “Underwriter’s Warrants”) covering a number of shares equal to ten percent (10%) of the total number of Firm Shares and Option Shares sold in this offering.
(b) In compliance with FINRA Rule 5110(e)(1), the Underwriter’s Warrants and the underlying securities will be locked up for 180 days beginning on the date of commencement of sales of the Offering and will expire five (5) years after the Effective Date. The Underwriter’s Warrants will be exercisable at a price equal to one hundred thirty percent (130%) of the public offering price of the underlying Class A Ordinary Shares in connection with the Offering. The Underwriter’s Warrants shall not be redeemable. The Company grants will register the Representative Class A Ordinary Shares underlying the right Underwriter’s Warrants under the Act and will file all necessary undertakings in connection therewith. The Underwriter’s Warrants and the underlying securities shall not be sold during the Offering, or sold, transferred, assigned, pledged, or hypothecated, or be the subject of first refusal any hedging, short sale, derivative, put, or call transaction that would result in the effective economic disposition of the securities by any person for a period of twelve 180 days beginning on the date of commencement of sales of the Offering, except that they, or any portion thereof, may be transferred or assigned to any successor to the Underwriter, any officer, manager, member or partner of the Underwriter, as well as to any member participating in the Offering and the officers, or partners, managers or members thereof, if all securities so transferred remain subject to the lock-up restriction for the remainder of the time period. The Underwriter may exercise the Underwriter’s Warrants at any time after issuance thereof, as to all or a lesser number of the underlying Class A Ordinary Shares, provided that such Class A Ordinary Shares underlying such Underwriter Warrants will remain subject to the 180-day lock-up period. The Underwriter’s Warrants will provide for cashless exercise and will contain provisions for one demand registration of the sale of the underlying Class A Ordinary Share at the Company’s expense, an additional demand registration at the Underwriter’s Warrants holder’s expense, and unlimited “piggyback” registration rights for a period of five (125) months years after the Effective Date at the Company’s expense and provided that the demand registration rights will not be for more than five years from the Effective Date to act as lead managing underwriter and book runner or minimally as a co-lead manager and co-book runner and/or co-lead placement agent with at least 50.0% of the economics; or, Date. The Underwriter’s Warrants shall further provide for adjustment in the case of a three-handed deal, 33.0% of the economics, for any number and all future equity, equity-linked or debt (excluding commercial bank debt) offerings undertaken by the Company or any subsidiaries of the Company. The Company shall provide written notice to Representative with terms price of such offering warrants (and if Representative fails the Class A Ordinary Share underlying such Warrants) in the event of recapitalization, merger or other structural transaction to accept in writing any such proposal for such public or private sale within 15 days after receipt of a written notice from the Company containing such proposal, then Representative will have no claim or right with respect to any such sale contained in any such noticeprevent dilution.
(c) The Representative Underwriter reserves the right to reduce any item of compensation or adjust the terms thereof as specified herein in the event that a determination shall be made by FINRA to the effect that the UnderwritersUnderwriter’ aggregate compensation is in excess of FINRA Rules or that the terms thereof require adjustment.
(d) Whether or not the transactions contemplated by this Agreement, the Registration Statement and the Prospectus are consummated or this Agreement is terminated, the Company hereby agrees to pay all costs and expenses incident to the performance of its obligations hereunder (provided any expenses exceeding $10,000 shall be subject to the Company’s prior written approval)Offering, including the following ($35,000 of which has previously been paid by the Company):following:
(i) all expenses in connection with the preparation, printing, formatting for XXXXX and filing of the Registration Statement, any Preliminary Prospectus and the Prospectus and any and all amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters Underwriter and dealers;
(ii) all fees and expenses in connection with filings with FINRA’s Public Offering System;
(iii) all fees and expenses in connection with filing of the Registration Statement and Prospectus with the Commission;
(iv) all fees, disbursements and expenses of the Company’s counsel and accountants in connection with the registration of the Securities under the Securities Act and the Offering;
(viv) all reasonable expenses in connection with the qualifications of the Securities for offering and sale under state or foreign securities or blue sky laws, including up to $10,000 for the fees of Underwriters’ Counsel in connection with such qualification and in connection with any blue sky survey undertaken by such counsel;
(viv) all fees and expenses in connection with listing the Securities on the Nasdaq Capital Marketa national securities exchange;
(viivi) all reasonable travel expenses of the Company’s officers officers, directors and employees and any other expense of the Company incurred in connection with attending or hosting meetings with prospective purchasers of the Securities Securities;
(“Road Show Expenses”)vii) all the road show expenses incurred by the Company;
(viii) any stock transfer taxes or other taxes incurred in connection with this Agreement or the Offering;
(ix) the costs associated with book building, prospectus tracking and compliance software and the cost of preparing certificates representing the Securities;
(x) the cost and charges of any transfer agent or registrar for the Securities;
(xi) any reasonable cost costs and expenses incurred in conducting satisfactory due diligence investigation and analysis background checks of the Company’s officers and directorsdirectors by a background search firm acceptable to the Underwriter, not to exceed $15,000;
(xii) any reasonable expenses and fees incurred by Underwriters’ Counsel; and
(xiii) all other costs and expenses incident to the performance of the Company obligations hereunder which are not otherwise specifically provided for in this Section 5.
(e) In addition to the costs and expenses set forth in Section 5(d) above, the Company will be responsible for: (i) the cost of two (2) “tombstone” advertisements to be placed in appropriate daily or weekly periodicals of the Representative’s choice (i.e., The Wall Street Journal and The New York Times); and (ii) the cost of leather associated with bound volumes of the Offering documents and Offering commemorative lucite (or other reasonable form) memorabilia, both to be supplied to the Representative, mementos in such quantities as Representative the Underwriter may reasonably request.
(f) It is understood, however, that except as provided in this Section 5, and Sections 7, 8 and 11(d) hereof, the Underwriters will pay all of their own costs and expenses. Notwithstanding anything not to the contrary in this Section 5, in the event that this Agreement is terminated pursuant to Section 11(b) hereof, or subsequent to a Material Adverse Change, the Company will pay, less any advances previously paid (the “Advances”), all out-of-pocket expenses of the Underwriters (including but not limited to fees and disbursements of Underwriters’ Counsel and reasonable travel) incurred in connection herewith which shall be limited to expenses which are actually incurred as allowed under FINRA Rule 5110 and the aggregate amount of such expenses to be reimbursed by the Company shall not exceed $100,000.2,500; and
Appears in 1 contract
Consideration; Payment of Expenses. (a) In consideration of the services to be provided for hereunder, the Company shall pay to the Underwriters or their respective designees their pro rata portion (based on the Securities purchased) of the following compensation with respect to the Offered Securities which they are offering:
(i) A cash fee payable at Closing An underwriting discount equal to seven eight percent (78%) of the aggregate gross proceeds raised in the Offering; and
(ii) The Representative’s Underwriters’ Warrants.
(biii) The Additionally, if the Closing occurs, the Company grants the Representative the right of first refusal for a period of twelve (12) months from the Effective Date date of commencement of sales pursuant to the Prospectus to act as lead managing underwriter and sole book runner or minimally as a co-lead manager and co-book runner and/or co-lead placement agent with at least 50.0% of the economics; or, in the case of a three-handed deal, 33.0% of the economics, for any and all future public or private equity, equity-linked or debt offerings (excluding commercial bank debt) offerings undertaken by the Company Company, its Subsidiary(ies), or any subsidiaries of successor thereto, but excluding any private placement in which the CompanyCompany (or its Subsidiary or successor) does not use an underwriter or placement agent. The Company shall provide written notice to the Representative with the terms of such offering and if the Representative fails to accept in writing any such proposal for such public or private sale within 15 ten (10) days after receipt of a such written notice from the Company containing such proposalnotice, then the Representative will have no claim or right with respect to any such sale contained in any such noticeoffering(s).
(civ) The Representative reserves the right to reduce any item of compensation or adjust the terms thereof as specified herein in the event that a determination shall be made by FINRA to the effect that the Underwriters’ aggregate compensation is in excess of FINRA Rules rules or that the terms thereof require adjustment.
(dv) Whether or not the transactions contemplated by this Agreement, the Registration Statement and the Prospectus are consummated or this Agreement is terminated, the Company hereby agrees to pay all costs and expenses incident to the performance of its obligations hereunder (provided any expenses exceeding $10,000 shall be subject to the Company’s prior written approval), including the following ($35,000 of which has previously been paid by the Company):following:
(i1) all expenses in connection with the preparation, printing, formatting for XXXXX and filing of the Registration Statement, any Preliminary Prospectus and the Prospectus and any and all exhibits, amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers;
(ii2) all filing fees and expenses in connection with filings with FINRA’s Public Offering System;
(iii) all fees and expenses in connection with filing of the Registration Statement and Prospectus with the Commission;
(iv3) all fees, disbursements and expenses of the Company’s counsel counsel, accountants and accountants other agents and representatives in connection with the registration of the Securities under the Securities Act and the Offering;
(v4) all reasonable expenses in connection with the qualifications of the Securities for offering and sale under state or foreign securities or blue sky lawslaws (including, including up to $10,000 for without limitation, all filing and registration fees, and the fees and disbursements of Underwriters’ Counsel in connection with such qualification and in connection with any blue sky survey undertaken by such counsel;
(vi5) all fees and expenses in connection with listing the Securities on the Nasdaq Capital Marketa national securities exchange;
(vii6) all reasonable expenses, including travel expenses and lodging expenses, of the Company’s officers officers, directors and employees and any other expense of the Company incurred in connection with attending or hosting meetings with prospective purchasers of the Securities (“Road Show Expenses”)and any fees and expenses associated with the i-Deal system and NetRoadshow;
(viii7) any stock transfer taxes or other taxes incurred in connection with this Agreement or the Offeringoffering, including any stock transfer taxes payable upon the transfer of securities to the Underwriters;
(ix) 8) the cost of preparing costs associated with preparing, printing and delivering certificates representing the Securities;
(x9) the cost and charges of any transfer agent or registrar for the Securities;
(xi10) any reasonable cost and expenses in conducting satisfactory due diligence investigation and analysis of subject to the Company’s officers and directors;
following proviso, other costs (xii) any reasonable expenses and fees incurred by including Underwriters’ Counsel; and
(xiiicounsel’s fees and expenses) all other costs and expenses incident to the performance of the Company obligations hereunder which Offering that are not otherwise specifically provided for in this Section 5.4(k);
(e11) In addition costs relating to the costs and expenses set forth in Section 5(d) above, the Company will be responsible for: (i) the cost of two (2) “tombstone” advertisements to be placed in appropriate daily or weekly periodicals background checks of the RepresentativeCompany’s choice (i.e., The Wall Street Journal officers and The New York Times)directors; and (ii) the cost of leather bound volumes of the Offering documents and Offering commemorative lucite (or other reasonable form) memorabilia, both to be supplied to the Representative, in such quantities as Representative may reasonably request.
(f) It is understoodprovided, however, that except as provided in this Section 5, all such costs and Sections 7, 8 expenses (including Underwriters’ counsel’s fees and 11(dexpenses) hereof, that are incurred by the Underwriters will pay all of their own costs and expenses. Notwithstanding anything to the contrary in this Section 5, in the event that this Agreement is terminated pursuant to Section 11(b) hereof, or subsequent to a Material Adverse Change, the Company will pay, less any advances previously paid (the “Advances”), all out-of-pocket expenses of the Underwriters (including but not limited to fees and disbursements of Underwriters’ Counsel and reasonable travel) incurred in connection herewith which shall be limited to expenses which are actually incurred as allowed under FINRA Rule 5110 and the aggregate amount of such expenses to be reimbursed by the Company shall not exceed $100,00090,000 in the aggregate.
Appears in 1 contract
Consideration; Payment of Expenses. (a) In consideration of the services to be provided for hereunder, the Company shall pay to the Underwriters or their respective designees their pro rata portion (based on the Securities purchased) of the following aggregate compensation with respect to the Offered Securities which they are offering:offering less an amount equal to the Advance plus any other funds remitted by the Company to pay costs and expenses that are incurred by the Underwriters (including Underwriters’ counsel’s fees and expenses) (“Additional Advanced Amounts”).
(i) A cash fee payable at Closing An underwriting discount equal to seven eight percent (78%) of the aggregate gross proceeds raised in the Offering; and
(ii) The Representative’s Warrants.
(b) The Additionally, if the Closing occurs, the Company grants the Representative the right of first refusal for a period of twelve (12) months from the Effective Date date of commencement of sales pursuant to the Prospectus to act as lead managing underwriter and sole book runner or minimally as a co-lead manager and co-book runner and/or co-lead placement agent with at least 50.0% of the economics; or, in the case of a three-handed deal, 33.0% of the economics, for any and all future equity, public or private equity or equity-linked or debt (excluding commercial bank debt) offerings undertaken by the Company, but excluding any private placement in which the Company does not use an underwriter or any subsidiaries of the Companyplacement agent. The Company shall provide written notice to the Representative with the terms of such offering and if the Representative fails to accept in writing any such proposal for such public or private sale within 15 ten (10) days after receipt of a such written notice from the Company containing such proposalnotice, then the Representative will have no claim or right with respect to any such sale contained in any such noticeoffering(s).
(ciii) The Representative reserves the right to reduce any item of compensation or adjust the terms thereof as specified herein in the event that a determination shall be made by FINRA to the effect that the Underwriters’ aggregate compensation is in excess of FINRA Rules rules or that the terms thereof require adjustment.
(div) Whether or not the transactions contemplated by this Agreement, the Registration Statement and the Prospectus are consummated or this Agreement is terminated, the Company hereby agrees to pay all costs and expenses incident to the performance of its obligations hereunder (provided any expenses exceeding $10,000 shall be subject to the Company’s prior written approval), including the following ($35,000 of which has previously been paid by the Company):following:
(i1) all expenses in connection with the preparation, printing, formatting for XXXXX and filing of the Registration Statement, any Preliminary Prospectus and the Prospectus and any and all exhibits, amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers;
(ii2) all filing fees and expenses in connection with filings with FINRA’s Public Offering System;
(iii) all fees and expenses in connection with filing of the Registration Statement and Prospectus with the Commission;
(iv3) all fees, disbursements and expenses of the Company’s counsel counsel, accountants and accountants other agents and representatives in connection with the registration of the Securities under the Securities Act and the Offering;
(v4) all reasonable expenses in connection with the qualifications of the Securities for offering and sale under state or foreign securities or blue sky lawslaws (including, including up to $10,000 for without limitation, all filing and registration fees, and the fees and disbursements of Underwriters’ Counsel in connection with such qualification and in connection with any blue sky survey undertaken by such counsel;
(vi5) all fees and expenses in connection with listing the Securities on the Nasdaq Capital Marketa national securities exchange;
(vii6) all reasonable expenses, including travel expenses and lodging expenses, of the Company’s officers officers, directors and employees and any other expense of the Company incurred in connection with attending or hosting meetings with prospective purchasers of the Securities (“Road Show Expenses”)and any fees and expenses associated with the i-Deal system and NetRoadshow;
(viii7) any stock transfer taxes or other taxes incurred in connection with this Agreement or the Offeringoffering, including any stock transfer taxes payable upon the transfer of securities to the Underwriters;
(ix) 8) the cost of preparing costs associated with preparing, printing and delivering certificates representing the Securities;
(x9) the cost and charges of any transfer agent or registrar for the Securities;
(xi10) any reasonable cost and expenses in conducting satisfactory due diligence investigation and analysis of subject to the Company’s officers and directors;
following proviso, other costs (xii) any reasonable expenses and fees incurred by including Underwriters’ Counsel; and
(xiiicounsel’s fees and expenses) all other costs and expenses incident to the performance of the Company obligations hereunder which Offering that are not otherwise specifically provided for in this Section 5.4(k);
(e11) In addition costs relating to the costs and expenses set forth in Section 5(d) above, the Company will be responsible for: (i) the cost of two (2) “tombstone” advertisements to be placed in appropriate daily or weekly periodicals background checks of the RepresentativeCompany’s choice (i.e., The Wall Street Journal officers and The New York Times); and (ii) the cost of leather bound volumes of the Offering documents and Offering commemorative lucite (or other reasonable form) memorabilia, both to be supplied to the Representative, in such quantities as Representative may reasonably request.
(f) It is understood, however, that except as provided in this Section 5, and Sections 7, 8 and 11(d) hereof, the Underwriters will pay all of their own costs and expenses. Notwithstanding anything to the contrary in this Section 5, in the event that this Agreement is terminated pursuant to Section 11(b) hereof, or subsequent to a Material Adverse Change, the Company will pay, less any advances previously paid (the “Advances”), all out-of-pocket expenses of the Underwriters (including but not limited to fees and disbursements of Underwriters’ Counsel and reasonable travel) incurred in connection herewith which shall be limited to expenses which are actually incurred as allowed under FINRA Rule 5110 and the aggregate amount of such expenses to be reimbursed by the Company shall not exceed $100,000.directors;
Appears in 1 contract
Consideration; Payment of Expenses. (a) In consideration of the services to be provided for hereunder, ,
(i) the Company shall pay to the Underwriters or their respective designees their pro rata portion (based on the Securities purchased) of the following compensation with respect to the Securities which they are offering:
(i) A cash fee payable at Closing an underwriting discount equal to seven percent (7%) of the aggregate gross proceeds raised in the Offering;
(ii) the Company shall pay to the Representative or its designees a non-accountable expense allowance of one and half percent (1.5%) of the gross proceeds of the Offering;
(iii) the Company shall pay to the Representative or its designees an accountable expense allowance of up to $150,000, of which $100,000 has already been paid to the Representative as an advance against accountable expenses, any portion of which not actually incurred in compliance with FINRA Rule 5110 (g)(4)(A) by the Representative will be reimbursed to the Company; and
(iiiv) The Representativethe Company shall grant to the Representative or its designated affiliates share purchase warrants (the “Underwriter’s Warrants”) covering a number of shares equal to nine percent (9%) of the total number of Firm Shares.
(b) The Underwriter’s Warrants will be non-exercisable for six (6) months after the date of commencement of sales of the Offering and will expire three (3) years after the date of commencement of sales. The Underwriter’s Warrants will be exercisable at a price equal to one hundred and twenty-five percent (125%) of the public offering price of the underlying Class A Ordinary Shares in connection with the Offering. The Underwriter’s Warrants shall not be redeemable. The Company grants will register the Representative Class A Ordinary Shares underlying the right Underwriter’s Warrants under the Act and will file all necessary undertakings in connection therewith. The Underwriter’s Warrants shall not be sold during the Offering, or sold, transferred, assigned, pledged, or hypothecated, or be the subject of first refusal any hedging, short sale, derivative, put, or call transaction that would result in the effective economic disposition of the securities by any person for a period of twelve (12) months from 180 days immediately following the Effective Date to act as lead managing underwriter and book runner or minimally as a co-lead manager and co-book runner and/or co-lead placement agent with at least 50.0% date of commencement of sales of the economics; orOffering, except that they may be transferred to any member participating in the case of a threeOffering and the officers or partners thereof, if all securities so transferred remain subject to the lock-handed deal, 33.0% up restriction for the remainder of the economics, for any and time period. The Underwriter’s Warrants may be exercised as to all future equity, equity-linked or debt (excluding commercial bank debt) offerings undertaken by the Company or any subsidiaries a lesser number of the underlying Class A Ordinary Shares, will provide for cashless exercise and will contain provisions for one demand registration of the sale of the underlying Class A Ordinary Share at the Company’s expense, an additional demand registration at the Underwriter’s Warrants holder’s expense, each such demand registration for a period of three (3) years after the date of commencement of sales of the Offering and unlimited “piggyback” registration rights for a period of three (3) years after the date of commencement of sales of the Offering at the Company’s expense. The Company Underwriter’s Warrants shall further provide written notice to Representative with terms for adjustment in the number and price of such offering warrants (and if Representative fails the Class A Ordinary Share underlying such Warrants) in the event of recapitalization, merger or other structural transaction to accept in writing any such proposal for such public or private sale within 15 days after receipt of a written notice from the Company containing such proposal, then Representative will have no claim or right with respect to any such sale contained in any such noticeprevent dilution.
(c) The Representative reserves the right to reduce any item of compensation or adjust the terms thereof as specified herein in the event that a determination shall be made by FINRA to the effect that the Underwriters’ aggregate compensation is in excess of FINRA Rules or that the terms thereof require adjustment.
(d) Whether or not the transactions contemplated by this Agreement, the Registration Statement and the Prospectus are consummated or this Agreement is terminated, the Company hereby agrees to pay all the following costs and expenses incident to the performance of its obligations hereunder (provided any expenses exceeding $10,000 shall be subject to the Company’s prior written approval), including the following ($35,000 of which has previously been paid by the Company):Offering:
(i) all expenses in connection with the preparation, printing, formatting for XXXXX EXXXX and filing of the Registration Statement, any Preliminary Prospectus and the Prospectus and any and all amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers;
(ii) all fees and expenses in connection with filings with FINRA’s Public Offering System;
(iii) all fees and expenses in connection with filing of the Registration Statement and Prospectus with the Commission;
(iv) all fees, disbursements and expenses of the Company’s counsel and accountants in connection with the registration of the Securities under the Securities Act and the Offering;
(viv) all reasonable expenses in connection with the qualifications of the Securities for offering and sale under state or foreign securities or blue sky laws, including up to $10,000 for the fees of Underwriters’ Counsel in connection with such qualification and in connection with any blue sky survey undertaken by such counsel;
(viv) all fees and expenses in connection with listing the Securities on the Nasdaq Capital Marketa national securities exchange;
(viivi) all reasonable travel expenses of the Company’s officers officers, directors and employees and any other expense of the Company incurred in connection with attending or hosting meetings with prospective purchasers of the Securities Securities;
(“Road Show Expenses”)vii) all the road show expenses incurred by the Company;
(viii) any stock transfer taxes or other taxes incurred in connection with this Agreement or the Offering;
(ix) the costs associated with book building, prospectus tracking and compliance software and the cost of preparing certificates representing the Securities;
(x) the cost and charges of any transfer agent or registrar for the Securities;
(xi) any reasonable cost costs and expenses incurred in conducting satisfactory due diligence investigation and analysis background checks of the Company’s officers and directors;directors by a background search firm acceptable to the Representative, not to exceed $15,000; and
(xii) any reasonable expenses and fees incurred by Underwriters’ Counsel; and
(xiii) all other costs and expenses incident to the performance of the Company obligations hereunder which are not otherwise specifically provided for in this Section 5.
(e) In addition to the costs and expenses set forth in Section 5(d) above, the Company will be responsible for: (i) the cost of two (2) “tombstone” advertisements to be placed in appropriate daily or weekly periodicals of the Representative’s choice (i.e., The Wall Street Journal and The New York Times); and (ii) the cost of leather associated with bound volumes of the Offering documents and Offering commemorative lucite (or other reasonable form) memorabilia, both to be supplied to the Representative, mementos in such quantities as the Representative may reasonably request., not to exceed $2,500;
(fe) It is understood, however, that except as provided in this Section 56, and Sections 78, 8 9 and 11(d) hereof, the Underwriters Representative will pay all of their own costs and expenses. Notwithstanding anything to the contrary in this Section 56, in the event that this Agreement is terminated pursuant to Section 11(b) hereof, or subsequent to a Material Adverse Change, the Company will pay, less any advances previously paid which as of the date hereof is $100,000, including $50,000 as an advance to be applied towards the accountable expenses allowance (the “Advances”)) and $50,000 paid upon the filing of the Company’s Registration Statement, all documented out-of-pocket expenses of the Underwriters Representative (including but not limited to fees and disbursements of Underwriters’ Representative’s Counsel and reasonable and accountable travel) incurred in connection herewith which shall be limited to expenses which are actually incurred as allowed under FINRA Rule 5110 and in any event, the aggregate amount of such expenses to be reimbursed by the Company shall not exceed $100,000150,000, including the Advances. To the extent that the Representative’s out-of-pocket expenses are less than the Advances, the Representative will return to the Company that portion of the Advances not offset by actual expenses.
Appears in 1 contract
Samples: Underwriting Agreement (Tian Ruixiang Holdings LTD)
Consideration; Payment of Expenses. (a) In consideration of the services to be provided for hereunder, the Company shall pay to the Underwriters Underwriter or their respective designees their its designee(s) the following compensation (or pro rata portion (based on the Securities purchasedthereof, if applicable) of the following compensation with respect to the Securities which they are offeringpurchased from the Company in this Offering:
(i) A cash fee payable at Closing an underwriting discount equal to seven six percent (76.0%) of the aggregate gross proceeds (inclusive the Over-allotment Option to purchase the Additional Shares) raised in the Offering;
(ii) a non-accountable expense allowance of one percent (1.0%) of the gross proceeds of the Offering;
(iii) an accountable expense allowance of up to $225,000, of which $200,000 has already been paid to the Underwriter as an advance against accountable expenses; and
(iiiv) The the Company shall grant to the Underwriter or its designated affiliates share purchase warrants (the “Representative’s Warrants”) covering a number of shares equal to seven percent (7.0%) of the total number of Firm Shares and Additional Shares sold in this Offering.
(b) In compliance with FINRA Rule 5110(e)(1), the Representative’s Warrants and the underlying securities will be locked up for 180 days following the date of commencement of sales of the Offering and will expire three (3) years after the Effective Date, subject to certain exceptions as set forth in FINRA Rule 5110(e)(2). The Representative’s Warrants are non-exercisable for six (6) months after the close of the Offering and will expire three (3) years after the sales of the Offering. The Representative’s Warrants will be exercisable at a price equal to one hundred and fifteen percent (125%) of the public offering price of the underlying Ordinary Shares in connection with the Offering. The Representative’s Warrants shall not be redeemable. The Company grants will register the Representative Ordinary Shares underlying the right Representative’s Warrants under the Act and will file all necessary undertakings in connection therewith. The Representative’s Warrants and the underlying securities shall not be sold during the Offering, or sold, transferred, assigned, pledged, or hypothecated, or be the subject of first refusal any hedging, short sale, derivative, put, or call transaction that would result in the effective economic disposition of the securities by any person for a period of twelve 180 days beginning on the date of commencement of sales of the Offering, except that they may be transferred to any member participating in the Offering and the officers or partners thereof, if all securities so transferred remain subject to the lock-up restriction for the remainder of the time period. The Underwriter will have the option to exercise, transfer or assign the Representative’s Warrants at any time, provided that the underlying securities shall not be transferred during the lock-up period; i.e., the Shares underlying the Representative’s Warrants shall remain subject to the 180-day lock-up period. The Representative’s Warrants may be exercised as to all or a lesser number of the underlying Ordinary Shares, will provide for cashless exercise and will contain provisions for one demand registration of the sale of the underlying Ordinary Share at the Company’s expense, an additional demand registration at the Representative’s Warrants holder’s expense, and unlimited “piggyback” registration rights at the Company’s expense, each with a duration of no more than three (123) months years from the Effective Date to act as lead managing underwriter and book runner or minimally as a co-lead manager and co-book runner and/or co-lead placement agent with at least 50.0% date of commencement of sales of the economics; or, offering in compliance with FINRA Rule 5110(g)(8)(D). The Representative’s Warrants shall further provide for adjustment in the case number and price of a three-handed dealsuch warrants (and the Ordinary Share underlying such Warrants) in the event of recapitalization, 33.0% merger or other structural transaction to prevent dilution. In the event that the Company chooses to disengage or terminate Network 1 Financial Securities, Inc. as its Underwriter prior to the effectiveness of the economics, for any and all future equity, equity-linked or debt (excluding commercial bank debt) offerings undertaken by Registration Statement but after the Company or any subsidiaries initial filing of the Registration Statement with the SEC (other than termination for “cause,” for Network 1 Financial Securities, Inc.’s material failure to provide the services contemplated in this Agreement, which will eliminate the Company. The Company shall provide written notice to Representative with terms of such offering and if Representative fails to accept in writing any such proposal for such public or private sale within 15 days after receipt of a written notice from the Company containing such proposal, then Representative will have no claim or right ’s obligations with respect to the payment of any such sale contained in any such noticefees with respect to this Section) Network 1 Financial Securities, Inc. will be due the full amount of the Representative’s Warrants that would be due to them at the Closing Date of the IPO.
(c) The Representative Underwriter reserves the right to reduce any item of compensation or adjust the terms thereof as specified herein in the event that a determination shall be made by FINRA to the effect that the UnderwritersUnderwriter’ aggregate compensation is in excess of FINRA Rules or that the terms thereof require adjustment.
(d) Whether or not the transactions contemplated by this Agreement, the Registration Statement and the Prospectus are consummated or this Agreement is terminated, the Company hereby agrees to pay all costs and expenses incident to the performance of its obligations hereunder (provided any expenses exceeding $10,000 shall be subject to the Company’s prior written approval)Offering, including the following ($35,000 of which has previously been paid by the Company):following:
(i) all expenses in connection with the preparation, printing, formatting for XXXXX and filing of the Registration Statement, any Preliminary Prospectus and the Prospectus and any and all amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters Underwriter and dealers;
(ii) all fees and expenses in connection with filings with FINRA’s Public Offering System;
(iii) all fees and expenses in connection with filing of the Registration Statement and Prospectus with the Commission;
(iv) all fees, disbursements and expenses of the Company’s counsel and accountants in connection with the registration of the Securities under the Securities Act and the Offering;
(viv) all reasonable expenses in connection with the qualifications of the Securities for offering and sale under state or foreign securities or blue sky laws, including up to $10,000 for the fees of Underwriters’ Counsel in connection with such qualification and in connection with any blue sky survey undertaken by such counsel;
(viv) all fees and expenses in connection with listing the Securities on the Nasdaq Capital Marketa national securities exchange;
(viivi) all reasonable travel expenses of the Company’s officers officers, directors and employees and any other expense of the Company incurred in connection with attending or hosting meetings with prospective purchasers of the Securities Securities;
(vii) all fees and expenses in connection with any “Road Show Expenses”)due diligence” meetings;
(viii) all the road show expenses incurred by the Company;
(ix) any stock transfer taxes or other taxes incurred in connection with this Agreement or the Offering;
(ixx) the costs associated with book building, prospectus tracking and compliance software and the cost of preparing certificates representing the Securities;
(xxi) the cost and charges of any transfer agent or registrar for the Securities;
(xixii) any reasonable cost costs and expenses incurred in conducting satisfactory due diligence investigation and analysis background checks of the Company’s officers and directorsdirectors by a background search firm acceptable to the Underwriter, not to exceed $15,000;
(xiixiii) any reasonable expenses the costs associated with bound volumes and fees incurred by Underwriters’ Counselmementos in such quantities as the Underwriter may reasonably request, not to exceed $2,500; and
(xiiixiv) all other costs fees and expenses incident to the performance of the Company obligations hereunder which are Underwriter’s legal counsel, not otherwise specifically provided for in this Section 5to exceed $75,000.
(e) In addition to the costs and expenses set forth in Section 5(d) above, the Company will be responsible for: (i) the cost of two (2) “tombstone” advertisements to be placed in appropriate daily or weekly periodicals of the Representative’s choice (i.e., The Wall Street Journal and The New York Times); and (ii) the cost of leather bound volumes of the Offering documents and Offering commemorative lucite (or other reasonable form) memorabilia, both to be supplied to the Representative, in such quantities as Representative may reasonably request.
(f) It is understood, however, that except as provided in this Section 56, and Sections 78, 8 9 and 11(d) hereof, the Underwriters Underwriter will pay all of their own costs and expenses. Notwithstanding anything to the contrary in this Section 56, in the event that this Agreement is terminated pursuant to Section 11(b12(b) hereof, or subsequent to a Material Adverse Change, the Company will pay, less any advances previously paid which as of the date hereof is $200,000, including $75,000 as an advance to be applied towards the accountable expenses allowance (the “AdvancesAdvance”), all $50,000 paid upon the first confidential filing of the Registration Statement, and $75,000 paid at the time the Company files the Registration Statement publicly. On the Closing Date, the Company shall pay the Underwriter $25,000 such that as of the Closing Date the Company shall have paid the Underwriter a total of no more than $225,000 in respect of such accountable expenses pursuant to this Section 6(e). All documented out-of-pocket expenses of the Underwriters Underwriter (including but not limited to fees and disbursements of Underwriters’ Underwriter’s Counsel and reasonable and accountable travel) incurred in connection herewith which shall be limited to expenses which are actually incurred as allowed under FINRA Rule 5110 and in any event, the aggregate amount of such expenses to be reimbursed by the Company shall not exceed $100,000225,000, including the Advances. To the extent that the Underwriter’ out-of-pocket expenses are less than the Advance, the Underwriter will return to the Company that portion of the Advances not offset by actual expenses in accordance with FINRA Rule 5110(g)(4)(A).
Appears in 1 contract
