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) 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 $200,000, 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; (iv) a right of first refusal (the “Right of First Refusal”), exercisable at the sole discretion of the representative for twelve months from the Closing Date, to provide investment banking service to the Company on terms that are the same or more favorable to the Company comparing to terms offered to the Company by other underwriters or placement agents. For these purposes, the investment banking service includes, without limitation, (a) acting as leading manager for any underwritten public offering; (b) acting as exclusive placement agent, initial purchaser in connection with any private offering of securities of the Company and (c) acting as financial advisor in connection with any sale or other transfer by the Company, directly or indirectly, of a majority or controlling portion of its capital stock or assets to another entity, any purchase or other transfer by another entity, directly or indirectly, of a majority or controlling portion of the capital stock or assets of the Company, and any merger or consolidation of the Company with another entity. The Right of First Refusal shall be subject to FINRA Rule 5110(g)(5). The Company shall notify the Representative of its or its subsidiary’s intention to pursue an investment banking service, including the material terms thereof, by providing written notice thereof by electronic mail or overnight courier service addressed to the Representative. If the Representative declines the terms of such investment banking service or fails to notify the Company of its intent to exercise its Right of First Refusal with respect to any investment banking services within fifteen (15) Business Days after the mailing of such written notice, then the Representative shall have no further claim or right with respect to the investment banking service. The Representative may elect, in its sole and absolute discretion, not to exercise its Right of First Refusal with respect to any investment banking services; provided that any such election, rejection, waiver or failure to respond or act, by the Representative shall not adversely affect the Representative’s Right of First Refusal with respect to any other investment banking services during the twelve (12) month period agreed to above. The terms and conditions of any such engagements shall be set forth in separate agreements and may be subject to, among other things, satisfactory completion of due diligence by the Representative, market conditions, the absence of a material adverse change to the Company’s business, financial condition and prospects, approval of the Representative’s internal committee and any other conditions that the Representative may deem appropriate for transactions of such nature; and (v) warrants to purchase a number of our shares equal to an aggregate of 5.0% of the total number of common stock sold in this offering (the “Representative’s Warrants”), which will be issued in compliance with FINRA Rule 5110(g)(8). The Representative’s Warrants will have an exercise price equal to 120% of the offering price of the common stock sold in this offering and may be exercised on a cashless basis. The Representative’s Warrants are exercisable commencing from six months after the date of commencement of sales of the Offering and will expire five years after the issuance date. The Representative’s Warrants provide for one demand registration of the sale of the underlying shares of common stock at the Company’s expense, an additional demand registration at the warrant holders’ expense and/or unlimited piggy-back registration rights at the Company’s expense, so that they are registered in this registration statement. The demand registration rights and the unlimited piggyback registration rights will only be exercisable within five years from the commencement of the Offering. The Representative’s Warrants and the common stock underlying the Representative’s Warrants, have been deemed compensation by the Financial Industry Regulatory Authority, or FINRA, and are therefore subject to a 180-day lock-up pursuant to Rule 5110(g)(1) of FINRA. The Representative (or permitted assignees under the Rule) may not sell, transfer, assign, pledge or hypothecate the Representative’s Warrants or the securities underlying the Representative’s Warrants, nor will they engage in any hedging, short sale, derivative, put or call transaction that would result in the effective economic disposition of the Representative’s Warrants or the underlying securities for a period of six months from the date of commencement of sales of this Offering, except to any FINRA member participating in the offering and their bona fide officers or partners. The Representative’s Warrants will provide for adjustment in the number and price of such Representative’s Warrants (and the common stock underlying such Representative’s Warrants), but only to prevent dilution in the event of a forward or reverse stock split, stock dividend or similar recapitalization. Additionally, the Representative will not receive or accrue cash dividends prior to the exercise or conversion of the Representative’s Warrants. (b) The 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. (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 Offering, including the 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, disbursements and expenses of the Company’s counsel and accountants in connection with the registration of the Securities under the Act and the Offering; (iv) all reasonable expenses in connection with the qualifications of the Securities for offering and sale under state or foreign securities or blue sky laws; (v) all fees and expenses in connection with listing the Securities on a national securities exchange; (vi) all reasonable travel expenses of the Company’s 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; (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. (d) It is understood, however, that except as provided in this Section 6, and Sections 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 6, 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, 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 $200,000, 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 2 contracts
Samples: Underwriting Agreement (Richtech Robotics Inc.), Underwriting Agreement (Richtech Robotics 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) an An underwriting discount equal to seven and one-half percent (77.5%) of the aggregate gross proceeds raised in the Offering;; provided, that, in the event an investor is introduced by the Company (“Company Investor(s)”), such cash fee shall be reduced to four percent (4.0%) solely with respect to any and all proceeds received by a Company Investor. Notwithstanding the foregoing, it is understood and agreed that the maximum aggregate gross proceeds that Company Investors may invest is capped at 5% of the final aggregate size of the Offering; and
(ii) The Underwriters’ Warrants.
(iii) Additionally, the Company grants the Representative the right of first refusal for a nonperiod of twelve (12) months from the date of commencement of sales pursuant to the Prospectus to act as lead placement agent and/or managing underwriter for any and all future public or private equity or equity-accountable expense allowance linked offerings (excluding strategic investor financings, mergers and acquisitions, commercial debt, lines of one credit and equipment financings) undertaken by the Company, its Subsidiary(ies), or any successor thereto, with a minimum of seventy percent (170%) of the gross proceeds of the Offering;
(iii) an accountable expense allowance of up to $200,000, 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 economics in such quantities as the Underwriters may reasonably request;
(iv) a right of first refusal (the “Right of First Refusal”), exercisable at the sole discretion of the representative for twelve months from the Closing Date, to provide investment banking service to the Company on terms that are the same or more favorable to the Company comparing to terms offered to the Company by other underwriters or placement agents. For these purposes, the investment banking service includes, without limitation, (a) acting as leading manager for any underwritten public offering; (b) acting as exclusive placement agent, initial purchaser in connection with any private offering of securities of the Company and (c) acting as financial advisor in connection with any sale or other transfer by the Company, directly or indirectly, of a majority or controlling portion of its capital stock or assets to another entity, any purchase or other transfer by another entity, directly or indirectly, of a majority or controlling portion of the capital stock or assets of the Company, and any merger or consolidation of the Company with another entity. The Right of First Refusal shall be subject to FINRA Rule 5110(g)(5subsequent offering(s). The Company shall notify provide written notice to the Representative of its or its subsidiary’s intention to pursue an investment banking service, including the material terms thereof, by providing written notice thereof by electronic mail or overnight courier service addressed to the Representative. If the Representative declines with the terms of such investment banking service or offering and if the Representative fails to notify the Company of its intent to exercise its Right of First Refusal with respect to accept in writing any investment banking services such proposal within fifteen ten (1510) Business Days days after the mailing receipt of such written notice, then the Representative shall will have no further claim or right with respect to the investment banking service. The Representative may elect, in its sole and absolute discretion, not to exercise its Right of First Refusal with respect to any investment banking services; provided that any such election, rejection, waiver or failure to respond or act, by the Representative shall not adversely affect the Representative’s Right of First Refusal with respect to any other investment banking services during the twelve (12) month period agreed to above. The terms and conditions of any such engagements shall be set forth in separate agreements and may be subject to, among other things, satisfactory completion of due diligence by the Representative, market conditions, the absence of a material adverse change to the Company’s business, financial condition and prospects, approval of the Representative’s internal committee and any other conditions that the Representative may deem appropriate for transactions of such nature; and
(v) warrants to purchase a number of our shares equal to an aggregate of 5.0% of the total number of common stock sold in this offering (the “Representative’s Warrants”offering(s), which will be issued in compliance with FINRA Rule 5110(g)(8). The Representative’s Warrants will have an exercise price equal to 120% of the offering price of the common stock sold in this offering and may be exercised on a cashless basis. The Representative’s Warrants are exercisable commencing from six months after the date of commencement of sales of the Offering and will expire five years after the issuance date. The Representative’s Warrants provide for one demand registration of the sale of the underlying shares of common stock at the Company’s expense, an additional demand registration at the warrant holders’ expense and/or unlimited piggy-back registration rights at the Company’s expense, so that they are registered in this registration statement. The demand registration rights and the unlimited piggyback registration rights will only be exercisable within five years from the commencement of the Offering. The Representative’s Warrants and the common stock underlying the Representative’s Warrants, have been deemed compensation by the Financial Industry Regulatory Authority, or FINRA, and are therefore subject to a 180-day lock-up pursuant to Rule 5110(g)(1) of FINRA. The Representative (or permitted assignees under the Rule) may not sell, transfer, assign, pledge or hypothecate the Representative’s Warrants or the securities underlying the Representative’s Warrants, nor will they engage in any hedging, short sale, derivative, put or call transaction that would result in the effective economic disposition of the Representative’s Warrants or the underlying securities for a period of six months from the date of commencement of sales of this Offering, except to any FINRA member participating in the offering and their bona fide officers or partners. The Representative’s Warrants will provide for adjustment in the number and price of such Representative’s Warrants (and the common stock underlying such Representative’s Warrants), but only to prevent dilution in the event of a forward or reverse stock split, stock dividend or similar recapitalization. Additionally, the Representative will not receive or accrue cash dividends prior to the exercise or conversion of the Representative’s Warrants.
(biv) The Underwriters reserve 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.
(cv) 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 Offering, including the 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 fees and expenses in connection with filings with FINRA’s Public Offering System;
(iii3) 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 Act and the Offering;
(iv4) 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, without limitation, all filing and registration fees, and the fees and disbursements of Underwriters’ counsel;
(v5) all fees and expenses in connection with listing the Securities on a national securities exchange;
(vi6) all reasonable expenses, including travel expenses and lodging expenses, of the Company’s officers, directors and employees and any other expense of the Company incurred in connection with attending or hosting meetings with prospective purchasers of the SecuritiesSecurities and any fees and expenses associated with the i-Deal system and NetRoadshow;
(vii) all the road show expenses incurred by the Company;
(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 costs associated with book buildingpreparing, prospectus tracking printing and compliance software and the cost of preparing delivering certificates representing the Securities;
(x9) the cost and charges of any transfer agent or registrar for the Securities.;
(d10) It is understoodsubject to the following proviso, other costs (including Underwriters’ counsel’s fees and expenses) and expenses incident to the Offering that are not otherwise specifically provided for in this Section 4(k); provided, however, that except as provided all such costs and expenses (including Underwriters’ counsel’s fees and expenses) that are incurred by the Underwriters shall not exceed $100,000 in this Section 6the aggregate, which amount includes the $20,000 advance previously paid by the Company to the Representative, and Sections 8, 9 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 6, 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, representing an advance to be applied towards the accountable expenses allowance (the “Advances”), all documented actual 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 $200,000, 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 2 contracts
Samples: Underwriting Agreement (Interpace Diagnostics Group, Inc.), Underwriting Agreement (Interpace Diagnostics 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) an underwriting discount equal to seven percent (77.0%) of the aggregate gross proceeds raised in the Offering;
(ii) a non-accountable expense allowance of one percent (1%) 0.75% of the gross proceeds of the Offering;
(iii) an accountable expense allowance of up to $200,000250,000.00, including including, among other things, all reasonable fees and expenses of the underwritersUnderwriters’ 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;request (the “Accountable Out-of-Pocket Expenses”). The Company has advanced an amount of $[100,000.00] (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).
(iv) non-redeemable warrants for the Representative to purchase an amount equal to five percent (5%) of the Ordinary Shares sold in this Offering (including the Option Shares), substantially in the form and content attached hereto as Annex V, which shall be non-callable and non-cancelable, are due and exercisable upon the closing of this Offering for nominal consideration, and have a five (5) year term starting from the date of the commencement of sales of this Offering, and a cashless exercise feature (the “Representative’s Warrants”). Such Representative’s Warrants are exercisable at a price of 120% of the public offering price of the Ordinary Shares offered pursuant to this Offering. The Representative’s Warrants and the underlying Ordinary Shares will be deemed compensation by XXXXX, and therefore will be subject to FINRA Rule 5110(e)(1). In accordance with FINRA Rule 5110(e)(1), and except as otherwise permitted by FINRA rules, neither the Representative’s Warrants nor any of our Ordinary Shares issued upon exercise of the Representative’s Warrants may 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 securities by any person, for a period of 180 days beginning on the date of commencement of sales of this Offering, except that (i) they may be transferred, in whole or in part, to any member participating in the Offering and its officers or partners, its registered persons or affiliates, if all transferred securities remain subject to the lock-up restriction for the remainder of the 180-day lock-up period pursuant to FINRA Rule 5110(e)(2)(B)(i), (ii) they may be exercised or converted, in whole or in part, if all securities received remain subject to the lock-up restriction for the remainder of the 180-day lock-up period, (iii) they may be transferred back to the Company in a transaction exempt from registration with the Commission, or other exceptions as provided under FIRNA Rule 5110(e)(2). The exercise price and number of Ordinary Shares issuable upon exercise of the Representative’s Warrants may be adjusted in certain circumstances, including in the event of a stock split, stock dividend, extraordinary cash dividend, or our recapitalization, reorganization, merger, or consolidation. As a result, the Representative’s Warrants’ exercise price and/or underlying shares may also be adjusted for issuances of Ordinary Shares at a price below the warrant exercise price.
(b) The Company and the Representative agree that the Representative shall have an irrevocable right of first refusal (the “Right of First Refusal”), exercisable at the sole discretion ) for a period of the representative for twelve (12) months from the Closing Dateclosing of the Offering, to provide investment banking service services to the Company on an exclusive basis in all matters for which investment banking services are sought by the Company on terms that are the same or more favorable to the Company comparing to terms offered to the Company by other underwriters or placement agents, which right is exercisable at the Representative’s sole and exclusive discretion. For these purposes, the investment banking service includesservices shall include, without limitation, (a) acting as leading the lead manager for any underwritten public offering; offering and (b) acting as the exclusive placement agent, agent or initial purchaser in connection with any private offering of securities of the Company and (c) acting as financial advisor in connection with any sale or other transfer by the Company, directly or indirectlyprovided, of a majority or controlling portion of its capital stock or assets to another entityhowever, any purchase or other transfer by another entity, directly or indirectly, of a majority or controlling portion of the capital stock or assets of the Company, and any merger or consolidation of the Company with another entity. The Right of First Refusal that such right shall be subject to FINRA Rule 5110(g)(55110(g). The Company Representative shall notify the Representative Company of its or its subsidiary’s intention to pursue an investment banking serviceexercise the Right of First Refusal under this Section 6 within fifteen (15) business dates following the receipt of the Company’s written notification of its financing needs. Any decision by the Representative to act in any such capacity shall be contained in separate agreements, including which agreements would contain, among other matters, provisions for customary fees for transactions of similar size and nature, as may be mutually agreed upon, and indemnification of the material terms thereof, by providing written notice thereof by electronic mail or overnight courier service addressed Representative and shall be subject to the Representativegeneral market conditions. If the Representative declines the terms of such investment banking service or fails to notify the Company of its intent to exercise its the Right of First Refusal with respect or is unable to any investment banking services within fifteen (15) Business Days after provide same or more favorable terms to the mailing of such written noticeCompany under reasonable standard, then the Representative Company shall have no further claim or the right with respect to the investment banking service. The Representative may elect, in its sole and absolute discretion, not to exercise its Right of First Refusal with respect to any investment banking services; provided that any such election, rejection, waiver or failure to respond or act, by the Representative shall not adversely affect the Representative’s Right of First Refusal with respect to retain any other investment banking person or persons to provide such services during the twelve (12) month period agreed to above. The on terms and conditions of any which are not more favorable to such engagements shall be set forth in separate agreements and may be subject to, among other things, satisfactory completion of due diligence person or persons than the terms declined by the Representative, market conditions, the absence of a material adverse change to the Company’s business, financial condition and prospects, approval of the Representative’s internal committee and any other conditions that the Representative may deem appropriate for transactions of such nature; and
(v) warrants to purchase a number of our shares equal to an aggregate of 5.0% of the total number of common stock sold in this offering (the “Representative’s Warrants”), which will be issued in compliance with FINRA Rule 5110(g)(8). The Representative’s Warrants will have an exercise price equal to 120% of the offering price of the common stock sold in this offering and may be exercised on a cashless basis. The Representative’s Warrants are exercisable commencing from six months after the date of commencement of sales of the Offering and will expire five years after the issuance date. The Representative’s Warrants provide for one demand registration of the sale of the underlying shares of common stock at the Company’s expense, an additional demand registration at the warrant holders’ expense and/or unlimited piggy-back registration rights at the Company’s expense, so that they are registered in this registration statement. The demand registration rights and the unlimited piggyback registration rights will only be exercisable within five years from the commencement of the Offering. The Representative’s Warrants and the common stock underlying the Representative’s Warrants, have been deemed compensation by the Financial Industry Regulatory Authority, or FINRA, and are therefore subject to a 180-day lock-up pursuant to Rule 5110(g)(1) of FINRA. The Representative (or permitted assignees under the Rule) may not sell, transfer, assign, pledge or hypothecate the Representative’s Warrants or the securities underlying the Representative’s Warrants, nor will they engage in any hedging, short sale, derivative, put or call transaction that would result in the effective economic disposition of the Representative’s Warrants or the underlying securities for a period of six months from the date of commencement of sales of this Offering, except to any FINRA member participating in the offering and their bona fide officers or partners. The Representative’s Warrants will provide for adjustment in the number and price of such Representative’s Warrants (and the common stock underlying such Representative’s Warrants), but only to prevent dilution in the event of a forward or reverse stock split, stock dividend or similar recapitalization. Additionally, the Representative will not receive or accrue cash dividends prior to the exercise or conversion of the Representative’s Warrants.
(bc) The 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.
(cd) 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 Offering, including the 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 filing fees and expenses in connection with filings with FINRA’s Public Offering System;
(iii) all fees, disbursements and expenses of the Company’s counsel and accountants in connection with the registration of the Securities under the Act and the Offering;
(iv) all reasonable expenses in connection with the qualifications of the Securities for offering and sale under state or foreign securities or blue sky laws, if necessary;
(v) all fees and expenses in connection with listing the Securities on a national securities exchange;
(vi) all reasonable travel expenses of the Company’s 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;
(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.
(de) It is understood, however, that except as provided in this Section 6, and Sections 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 6, 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, representing an advance to be applied towards the accountable expenses allowance (the “Advances”), all documented 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 $200,000250,000, including the Advances. To , and (ii) to the extent that the Underwriters’ outAccountable Out-of-pocket expenses 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 which they are offering:
(i) an An underwriting discount equal to of seven and one-half percent (77.50%) of the aggregate gross proceeds raised in the Offering;Offering (for the avoidance of doubt, excluding any proceeds from the exercise of warrants); and
(ii) a non-accountable expense allowance of one percent (1%) of the gross proceeds of the Offering;The Representative’s Warrants.
(iiib) Additionally, and subject to consummation of an accountable expense allowance Offering which will include an actual investment of up to at least $200,0006,000,000, including all reasonable fees and expenses of the underwriters’ outside legal counsel; any reasonable costs and expenses incurred in conducting background checks of Company hereby grants the Company’s officers and directors by a background search firm acceptable to Representative the Underwriters; and the costs associated with bound volumes and mementos in such quantities as the Underwriters may reasonably request;
(iv) a right of first refusal (the “Right of First Refusal”), exercisable at the sole discretion of the representative for twelve months from the Closing Date, to provide investment banking service to the Company a period beginning on terms that are the same or more favorable to the Company comparing to terms offered to the Company by other underwriters or placement agents. For these purposes, the investment banking service includes, without limitation, (a) acting as leading manager for any underwritten public offering; (b) acting as exclusive placement agent, initial purchaser in connection with any private offering of securities of the Company and (c) acting as financial advisor in connection with any sale or other transfer by the Company, directly or indirectly, of a majority or controlling portion of its capital stock or assets to another entity, any purchase or other transfer by another entity, directly or indirectly, of a majority or controlling portion of the capital stock or assets of the Company, and any merger or consolidation of the Company with another entity. The Right of First Refusal shall be subject to FINRA Rule 5110(g)(5). The Company shall notify the Representative of its or its subsidiary’s intention to pursue an investment banking service, including the material terms thereof, by providing written notice thereof by electronic mail or overnight courier service addressed to the Representative. If the Representative declines the terms of such investment banking service or fails to notify the Company of its intent to exercise its Right of First Refusal with respect to any investment banking services within fifteen (15) Business Days after the mailing of such written notice, then the Representative shall have no further claim or right with respect to the investment banking service. The Representative may elect, in its sole and absolute discretion, not to exercise its Right of First Refusal with respect to any investment banking services; provided that any such election, rejection, waiver or failure to respond or act, by the Representative shall not adversely affect the Representative’s Right of First Refusal with respect to any other investment banking services during the twelve (12) month period agreed to above. The terms and conditions of any such engagements shall be set forth in separate agreements and may be subject to, among other things, satisfactory completion of due diligence by the Representative, market conditions, the absence of a material adverse change to the Company’s business, financial condition and prospects, approval of the Representative’s internal committee and any other conditions that the Representative may deem appropriate for transactions of such nature; and
(v) warrants to purchase a number of our shares equal to an aggregate of 5.0% of the total number of common stock sold in this offering (the “Representative’s Warrants”), which will be issued in compliance with FINRA Rule 5110(g)(8). The Representative’s Warrants will have an exercise price equal to 120% of the offering price of the common stock sold in this offering and may be exercised on a cashless basis. The Representative’s Warrants are exercisable commencing from six months after the date of commencement of sales of the Offering through the one (1) year anniversary thereof, to act as lead managing underwriter and will expire five years after 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 issuance dateeconomies, for any and all future public equity, equity-linked or debt (excluding commercial bank debt and credit facility) offerings undertaken by the Company or any Subsidiaries, in each case, in the United States, provided that the Company shall have the right to add a reputable top-tier firm or other advisor to act as a joint book runner together with the Representative in any such offering. The Representative’s Warrants Company shall provide for one demand registration written notice to the Representative with terms of the sale such offering and if such Representative fails to accept in writing any such proposal within five (5) business days after receipt of the underlying shares such written notice, then such Representative will have no claim or right with respect to any such offering. The above provision shall not be applicable to a financing solicited from a person or entity which is a holder of common stock at the Company’s expense, an additional demand registration at the warrant holders’ expense and/or unlimited piggy-back registration rights at the Company’s expense, so that they are registered in this registration statement. The demand registration rights and the unlimited piggyback registration rights will only be exercisable within five years from the commencement debt or equity securities as of the Offering. The Representative’s Warrants and date hereof or an issuer-directed offering that is not facilitated through or using the common stock underlying the Representative’s Warrants, have been deemed compensation by the Financial Industry Regulatory Authority, or FINRA, and are therefore subject to a 180-day lock-up pursuant to Rule 5110(g)(1) services of FINRA. The Representative (or permitted assignees under the Rule) may not sell, transfer, assign, pledge or hypothecate the Representative’s Warrants or the securities underlying the Representative’s Warrants, nor will they engage in any hedging, short sale, derivative, put or call transaction that would result in the effective economic disposition of the Representative’s Warrants or the underlying securities for a period of six months from the date of commencement of sales of this Offering, except to any FINRA member participating in the offering and their bona fide officers or partners. The Representative’s Warrants will provide for adjustment in the number and price of such Representative’s Warrants (and the common stock underlying such Representative’s Warrants), but only to prevent dilution in the event of a forward or reverse stock split, stock dividend an investment bank or similar recapitalization. Additionally, the Representative will not receive or accrue cash dividends prior to the exercise or conversion of the Representative’s Warrantsfinancial advisor.
(bc) [Intentionally omitted]
(d) The Underwriters reserve 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.
(ce) 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 this Offering, including the 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, 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;
(iv) 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;
(v) all fees and expenses in connection with listing the Securities on a national securities exchange[reserved];
(vi) all reasonable expenses, including travel expenses of the Company’s officersand lodging expenses, directors and employees and any other expense of the Company incurred in connection with attending or hosting meetings with prospective purchasers of the SecuritiesSecurities (“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;
(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;
(x) any reasonable cost and expenses in conducting background checks of the Company’s officers and directors by a background search firm acceptable to the Representative in an amount of up to $600 per officer or director; and
(xi) all other 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, (i) that all such costs and expenses pursuant to this Section 5(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 reimbursed to the extent not offset by actual expenses) and (ii) all expenses in excess of $250 must be pre-approved by the Company; provided, however, that the Underwriters shall provide a credit to the Company in the amount of $[●].
(df) It is understood, however, that except as provided in this Section 65, and Sections 87, 9 8 and 11(d) hereof, the Underwriters will pay all of their own costs and expenses. Notwithstanding anything to the contrary in this Section 65, 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, representing an advance to be applied towards the accountable expenses allowance paid (the “Advances”), all documented reasonable accountable 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 event5110, 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 $200,000, 50,000 (including the Advancesreasonable 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. To the extent that If the Underwriters’ out-of-pocket expenses are less than respective Advances previously paid to the AdvancesRepresentative, the Underwriters will 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 portion 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 Advances not offset by actual expensesState of Israel.
Appears in 1 contract
Consideration; Payment of Expenses. (a) In consideration of the services to be provided for hereunder, the Company shall pay the following compensation with respect to the Units which they are offering: An underwriting discount equal to an aggregate of eight percent (8%) of the aggregate gross proceeds raised in the Offering 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) 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 $200,000, 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 UnderwritersUnits sold); and the costs associated with bound volumes and mementos in such quantities as the Underwriters may reasonably request;
(iv) a right of first refusal (the “Right of First Refusal”), exercisable at the sole discretion of the representative for twelve months from the Closing Date, to provide investment banking service to the Company on terms that are the same or more favorable to the Company comparing to terms offered to the Company by other underwriters or placement agents. For these purposes, the investment banking service includes, without limitation, (a) acting as leading manager for any underwritten public offering; (b) acting as exclusive placement agent, initial purchaser in connection with any private offering of securities of the Company and (c) acting as financial advisor in connection with any sale or other transfer by the Company, directly or indirectly, of a majority or controlling portion of its capital stock or assets to another entity, any purchase or other transfer by another entity, directly or indirectly, of a majority or controlling portion of the capital stock or assets of the Company, and any merger or consolidation of the Company with another entity. The Right of First Refusal shall be subject to FINRA Rule 5110(g)(5). The Company shall notify the Representative of its or its subsidiary’s intention to pursue an investment banking service, including the material terms thereof, by providing written notice thereof by electronic mail or overnight courier service addressed to the Representative. If the Representative declines the terms of such investment banking service or fails to notify the Company of its intent to exercise its Right of First Refusal with respect to any investment banking services within fifteen (15) Business Days after the mailing of such written notice, then the Representative shall have no further claim or right with respect to the investment banking service. The Representative may elect, in its sole and absolute discretion, not to exercise its Right of First Refusal with respect to any investment banking services; provided that any such election, rejection, waiver or failure to respond or act, by the Representative shall not adversely affect the Representative’s Right of First Refusal with respect to any other investment banking services during the twelve (12) month period agreed to above. The terms and conditions of any such engagements shall be set forth in separate agreements and may be subject to, among other things, satisfactory completion of due diligence by the Representative, market conditions, the absence of a material adverse change to the Company’s business, financial condition and prospects, approval of the Representative’s internal committee and any other conditions that the Representative may deem appropriate for transactions of such nature; and
(v) warrants to purchase a number of our shares equal to an aggregate of 5.0% of the total number of common stock sold in this offering Common Stock Purchase Warrants (the “Representative’s Warrants”)) to the Representative or its permitted designees at the Closing to purchase, which will be issued in compliance with FINRA Rule 5110(g)(8). The Representative’s Warrants will have an exercise price the aggregate, shares of Common Stock equal to 1202% of the offering price aggregate number of the common stock Firm Units sold in this offering and may be exercised on a cashless basis. The Representative’s Warrants are exercisable commencing from six months after the date of commencement of sales of the Offering and will expire five years after the issuance date. The Representative’s Warrants provide for one demand registration of the sale of the underlying shares of common stock at the Company’s expense, an additional demand registration at the warrant holders’ expense and/or unlimited piggy-back registration rights at the Company’s expense, so that they are registered in this registration statement. The demand registration rights and the unlimited piggyback registration rights will only be exercisable within five years from the commencement of the Offering. The Representative’s Warrants shall be in customary form reasonably acceptable to Representative, have a term of 5 years from the Effective Date, an exercise price of 110% of the price of Units sold in the Offering and a lock-up period of 360-days from the common stock underlying issuance of the Representative’s Warrants, have been deemed compensation by the Financial Industry Regulatory Authority, or FINRA, and are therefore subject to a 180-day lock-up pursuant to Rule 5110(g)(1) of FINRA. The Representative (or permitted assignees under the Rule) may not sell, transfer, assign, pledge or hypothecate the Representative’s Warrants or the securities underlying the Representative’s Warrants, nor will they engage in any hedging, short sale, derivative, put or call transaction that would result in the effective economic disposition of the Representative’s Warrants or the underlying securities shall not be transferable for a period of six months from the date of commencement the Offering except as permitted by FINRA Rule 5110(g)(1).
(i) the Underwriters shall be entitled to the fee under clause 6(a) hereunder, calculated in the manner set forth therein, with respect to any public or private offering or other financing or capital-raising transaction of sales any kind (“Tail Financing”) to the extent that such financing or capital is provided to the Company by investors whom the Representative had introduced to the Company in connection with the Offering, if such Tail Financing is consummated at any time within the 15-month period following the expiration or termination of this Offering, except to any FINRA member participating in Agreement. At the offering and their bona fide officers or partners. The Representative’s Warrants will provide for adjustment in request of the number and price of such Representative’s Warrants (and the common stock underlying such Representative’s Warrants), but only to prevent dilution in the event of a forward or reverse stock split, stock dividend or similar recapitalization. AdditionallyCompany, the Representative will not receive or accrue cash dividends prior to provide the exercise or conversion Company with a list of investors so identified by the Representative on behalf of the Representative’s WarrantsCompany.
(bii) If within fifteen (15) months after (and conditional upon) the consummation of the Offering, the Company or any of its subsidiaries (i) decides to dispose of or acquire business units or acquire any of its outstanding securities or make any exchange or tender offer or enter into a merger, consolidation or other business combination or any recapitalization, reorganization, restructuring or other similar transaction, including, without limitation, an extraordinary dividend or distributions or a spin-off or split-off, and the Company decides to retain a financial advisor for such transaction, the Representative (or any affiliate designated by the Representative) shall have the exclusive right to act as the Company’s financial advisor(s) for any such transaction (each with a 50% right of participation/economics); or (ii) decides to finance or refinance any indebtedness using a manager or agent, the Representative (or any affiliate designated by the Representative) shall have the exclusive right to act as joint book runners, co-lead managers, co-lead placement agents or co-lead agents with respect to such financing or refinancing (each with a 50% right of participation/economics); or (iii) decides to raise funds by means of a public offering or a private placement of equity or debt securities using an underwriter or placement agent, the Representative (or any affiliate designated by the Representative) shall have the exclusive right to act as joint book runners, co-lead underwriters or co-lead placement agents for such financing (each with a 50% right of participation/economics). The Company shall provide the Representative no less than ten (10) days’ notice of its election to engage in any such transactions, which notice shall contain a brief description of the proposed transaction. If neither the Representative respond within such ten (10) day period, they shall be deemed to have rejected the right to participate in the subject transaction. If either Representative or one of their affiliates decide to accept any such engagement, the Company shall enter into a customary engagement agreement related to such transaction with the Representative, which agreement will contain, among other things, provisions for customary fees for transactions of similar size and nature and the provisions of this Agreement, including indemnification, which are appropriate to such a transaction, and shall stipulate that each of the Representative (should both Representative accept the engagement) shall have a 50% right of participation/economics.
(c) The Underwriters reserve 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.
(cd) Whether or not the transactions contemplated by this Agreement, the Registration Statement and the Prospectus are consummated or this Agreement is terminated, the The Company hereby agrees to pay all costs costs, fees and expenses up to $60,000 incident to the OfferingOffering (“Non-Accountable Expenses”), including the following:
(i) all expenses in connection with the preparationbut not limited to, 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, disbursements and expenses of the Company’s counsel and accountants in connection with the registration of the Securities under the Act and the Offering;
(iv) all reasonable expenses in connection with the qualifications of the Securities for offering and sale under state or foreign securities or blue sky laws;
(v) all fees and expenses in connection with listing the Securities on a national securities exchange;
(vi) all reasonable travel expenses of the Company’s 's 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;Units (it being agreed that the Company has previously advanced $50,000 to the Representative).
(viie) all The Company hereby agrees to pay the road show expenses incurred by legal fees of the Company;
Representative, with a maximum of $100,000, as follows: (viiii) any stock transfer taxes or other taxes incurred $30,000 upon signing of the engagement agreement with the Representative which fee has been paid; (ii) an additional $25,000 upon effectiveness of the Registration Statement in connection with this Agreement or Offering; and (iii) any balance due as a result of the Underwriters legal fees and expenses at the Closing of the Offering;
. If the Offering is abandoned or is terminated or expired, in accordance with the engagement agreement, the Representative shall be entitled to up to an additional $25,000 in legal fees (ix) legal counsel shall be required to submit an invoice of their legal fees to 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 SecuritiesCompany).
(df) It is understood, however, that except as provided in this Section 6, and Sections 8, 9 and 11(d12(d) hereof, the Underwriters will pay all of their own costs and expenses. Notwithstanding anything to the contrary in this Section 6, 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, 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 $200,000, 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 which they are offering:
(i) an underwriting discount equal to seven and 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 advisory fee of $150,000 of which $60,000 has been paid as of the date of this Agreement;
(iv) an accountable expense allowance of up to $200,000150,000, including including, among other things, all reasonable fees and expenses of the underwritersUnderwriters’ 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; and expenses related to book building, prospectus tracking, and compliance software services ;and
(ivv) a right of first refusal (the “Right of First Refusal”), exercisable at the sole discretion of the representative Revere Securities LLC (“Revere”) for twelve months from the Closing Dateclosing day of this offering, to provide investment banking service to the Company on terms that are the same or more favorable to the Company comparing to terms offered to the Company by other underwriters or placement agents. For these purposes, the investment banking service includes, without limitation, (a) acting as leading lead or joint-lead manager for any underwritten public offering; (b) acting as exclusive lead or joint book-runner and/or lead or joint placement agent, initial purchaser in connection with any private offering of securities of the Company Company; and (c) acting as financial advisor in connection with any sale or other transfer by the Company, directly or indirectly, of a majority or controlling portion of its capital stock or assets to another entity, any purchase or other transfer by another entity, directly or indirectly, of a majority or controlling portion of the capital stock or assets of the Company, and any merger or consolidation of the Company with another entity. Revere shall notify the Company of its intention to exercise the Right of First Refusal within 15 business days following notice in writing by the Company. Any decision by Revere to act in any such capacity shall be contained in separate agreements, which agreements would contain, among other matters, provisions for customary fees for transactions of similar size and nature, as may be mutually agreed upon, and indemnification of Revere and shall be subject to general market conditions. In compliance with FINRA Rule 5110(g)(6)(A), in no circumstances the Right of First Refusal shall have a duration of more than three years from the commencement of sales of the public offering or the termination date of the engagement between the Company and Revere. If Revere declines to exercise the Right of First Refusal, the Company shall have the right to retain any other person or persons to provide such services on terms and conditions which are not more favorable to such other person or persons than the terms declined by Revere. The Right of First Refusal shall granted hereunder may be subject to FINRA Rule 5110(g)(5). The Company shall notify the Representative of its or its subsidiary’s intention to pursue an investment banking service, including the material terms thereof, terminated by providing written notice thereof by electronic mail or overnight courier service addressed to the Representative. If the Representative declines the terms of such investment banking service or fails to notify the Company for “Cause,” which shall mean a material breach by Revere of its intent to exercise its Right of First Refusal with respect to any investment banking services within fifteen (15) Business Days after the mailing of such written notice, then the Representative shall have no further claim engagement letter or right with respect to the investment banking service. The Representative may elect, in its sole and absolute discretion, not to exercise its Right of First Refusal with respect to any investment banking services; provided that any such election, rejection, waiver or a material failure to respond or act, by the Representative shall not adversely affect Revere to provide the Representative’s Right of First Refusal with respect to any other investment banking services during the twelve (12) month period agreed to above. The terms and conditions of any such engagements shall be set forth in separate agreements and may be subject to, among other things, satisfactory completion of due diligence as contemplated by the Representative, market conditions, the absence of a material adverse change to the Company’s business, financial condition and prospects, approval of the Representative’s internal committee and any other conditions that the Representative may deem appropriate for transactions of such nature; and
(v) warrants to purchase a number of our shares equal to an aggregate of 5.0% of the total number of common stock sold in this offering (the “Representative’s Warrants”), which will be issued in compliance with FINRA Rule 5110(g)(8). The Representative’s Warrants will have an exercise price equal to 120% of the offering price of the common stock sold in this offering and may be exercised on a cashless basis. The Representative’s Warrants are exercisable commencing from six months after the date of commencement of sales of the Offering and will expire five years after the issuance date. The Representative’s Warrants provide for one demand registration of the sale of the underlying shares of common stock at the Company’s expense, an additional demand registration at the warrant holders’ expense and/or unlimited piggy-back registration rights at the Company’s expense, so that they are registered in this registration statement. The demand registration rights and the unlimited piggyback registration rights will only be exercisable within five years from the commencement of the Offering. The Representative’s Warrants and the common stock underlying the Representative’s Warrants, have been deemed compensation by the Financial Industry Regulatory Authority, or FINRA, and are therefore subject to a 180-day lock-up pursuant to Rule 5110(g)(1) of FINRA. The Representative (or permitted assignees under the Rule) may not sell, transfer, assign, pledge or hypothecate the Representative’s Warrants or the securities underlying the Representative’s Warrants, nor will they engage in any hedging, short sale, derivative, put or call transaction that would result in the effective economic disposition of the Representative’s Warrants or the underlying securities for a period of six months from the date of commencement of sales of this Offering, except to any FINRA member participating in the offering and their bona fide officers or partners. The Representative’s Warrants will provide for adjustment in the number and price of such Representative’s Warrants (and the common stock underlying such Representative’s Warrants), but only to prevent dilution in the event of a forward or reverse stock split, stock dividend or similar recapitalization. Additionally, the Representative will not receive or accrue cash dividends prior to the exercise or conversion of the Representative’s Warrantsengagement letter.
(b) The 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.
(c) Whether or not the transactions contemplated by this Agreement, the Registration Statement and the Prospectus are consummated consummated, or this Agreement is terminated, the Company hereby agrees to pay all bear the following costs and expenses incident to the Offering, including and the followingUnderwriters shall not receive any such payment, directly or indirectly, as compensation to this Offering:
(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, disbursements and expenses of the Company’s counsel and accountants in connection with the registration of the Securities under the Act and the Offering;
(iv) all reasonable expenses in connection with the qualifications of the Securities for offering and sale under state or foreign securities or blue sky laws;
(v) all fees and expenses in connection with listing the Securities on a national securities exchange;
(vi) all reasonable travel expenses of the Company’s 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;
(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.
(d) It is understood, however, that except as provided in this Section 6, and Sections 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 6, 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, 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 $200,000150,000, 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 (Baiya International 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) an underwriting discount equal to seven percent (77.0%) of the aggregate gross proceeds raised in the Offering;
(ii) a non-accountable expense allowance of one percent (1%) 0.75% of the gross proceeds of the Offering;
(iii) an accountable expense allowance of up to $200,000250,000.00, including including, among other things, all reasonable fees and expenses of the underwritersUnderwriters’ 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;request (the “Accountable Out-of-Pocket Expenses”). The Company has advanced an amount of $100,000.00 (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).
(iv) non-redeemable warrants for the Representative to purchase an amount equal to five percent (5%) of the Ordinary Shares sold in this Offering (including the Option Shares), substantially in the form and content attached hereto as Annex V, which shall be non-callable and non-cancelable, are due and exercisable upon the closing of this Offering for nominal consideration, and have a five (5) year term starting from the date of the commencement of sales of this Offering, and a cashless exercise feature (the “Representative’s Warrants”). Such Representative’s Warrants are exercisable at a price of 120% of the public offering price of the Ordinary Shares offered pursuant to this Offering. The Representative’s Warrants and the underlying Ordinary Shares will be deemed compensation by XXXXX, and therefore will be subject to FINRA Rule 5110(e)(1). In accordance with FINRA Rule 5110(e)(1), and except as otherwise permitted by FINRA rules, neither the Representative’s Warrants nor any of our Ordinary Shares issued upon exercise of the Representative’s Warrants may 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 securities by any person, for a period of 180 days beginning on the date of commencement of sales of this Offering, except that (i) they may be transferred, in whole or in part, to any member participating in the Offering and its officers or partners, its registered persons or affiliates, if all transferred securities remain subject to the lock-up restriction for the remainder of the 180-day lock-up period pursuant to FINRA Rule 5110(e)(2)(B)(i), (ii) they may be exercised or converted, in whole or in part, if all securities received remain subject to the lock-up restriction for the remainder of the 180-day lock-up period, (iii) they may be transferred back to the Company in a transaction exempt from registration with the Commission, or other exceptions as provided under FIRNA Rule 5110(e)(2). The exercise price and number of Ordinary Shares issuable upon exercise of the Representative’s Warrants may be adjusted in certain circumstances, including in the event of a stock split, stock dividend, extraordinary cash dividend, or our recapitalization, reorganization, merger, or consolidation. As a result, the Representative’s Warrants’ exercise price and/or underlying shares may also be adjusted for issuances of Ordinary Shares at a price below the warrant exercise price.
(b) The Company and the Representative agree that the Representative shall have an irrevocable right of first refusal (the “Right of First Refusal”), exercisable at the sole discretion ) for a period of the representative for twelve (12) months from the Closing Dateclosing of the Offering, to provide investment banking service services to the Company on an exclusive basis in all matters for which investment banking services are sought by the Company on terms that are the same or more favorable to the Company comparing to terms offered to the Company by other underwriters or placement agents, which right is exercisable at the Representative’s sole and exclusive discretion. For these purposes, the investment banking service includesservices shall include, without limitation, (a) acting as leading the lead manager for any underwritten public offering; offering and (b) acting as the exclusive placement agent, agent or initial purchaser in connection with any private offering of securities of the Company and (c) acting as financial advisor in connection with any sale or other transfer by the Company, directly or indirectlyprovided, of a majority or controlling portion of its capital stock or assets to another entityhowever, any purchase or other transfer by another entity, directly or indirectly, of a majority or controlling portion of the capital stock or assets of the Company, and any merger or consolidation of the Company with another entity. The Right of First Refusal that such right shall be subject to FINRA Rule 5110(g)(55110(g). The Company Representative shall notify the Representative Company of its or its subsidiary’s intention to pursue an investment banking serviceexercise the Right of First Refusal under this Section 6 within fifteen (15) business dates following the receipt of the Company’s written notification of its financing needs. Any decision by the Representative to act in any such capacity shall be contained in separate agreements, including which agreements would contain, among other matters, provisions for customary fees for transactions of similar size and nature, as may be mutually agreed upon, and indemnification of the material terms thereof, by providing written notice thereof by electronic mail or overnight courier service addressed Representative and shall be subject to the Representativegeneral market conditions. If the Representative declines the terms of such investment banking service or fails to notify the Company of its intent to exercise its the Right of First Refusal with respect or is unable to any investment banking services within fifteen (15) Business Days after provide same or more favorable terms to the mailing of such written noticeCompany under reasonable standard, then the Representative Company shall have no further claim or the right with respect to the investment banking service. The Representative may elect, in its sole and absolute discretion, not to exercise its Right of First Refusal with respect to any investment banking services; provided that any such election, rejection, waiver or failure to respond or act, by the Representative shall not adversely affect the Representative’s Right of First Refusal with respect to retain any other investment banking person or persons to provide such services during the twelve (12) month period agreed to above. The on terms and conditions of any which are not more favorable to such engagements shall be set forth in separate agreements and may be subject to, among other things, satisfactory completion of due diligence person or persons than the terms declined by the Representative, market conditions, the absence of a material adverse change to the Company’s business, financial condition and prospects, approval of the Representative’s internal committee and any other conditions that the Representative may deem appropriate for transactions of such nature; and
(v) warrants to purchase a number of our shares equal to an aggregate of 5.0% of the total number of common stock sold in this offering (the “Representative’s Warrants”), which will be issued in compliance with FINRA Rule 5110(g)(8). The Representative’s Warrants will have an exercise price equal to 120% of the offering price of the common stock sold in this offering and may be exercised on a cashless basis. The Representative’s Warrants are exercisable commencing from six months after the date of commencement of sales of the Offering and will expire five years after the issuance date. The Representative’s Warrants provide for one demand registration of the sale of the underlying shares of common stock at the Company’s expense, an additional demand registration at the warrant holders’ expense and/or unlimited piggy-back registration rights at the Company’s expense, so that they are registered in this registration statement. The demand registration rights and the unlimited piggyback registration rights will only be exercisable within five years from the commencement of the Offering. The Representative’s Warrants and the common stock underlying the Representative’s Warrants, have been deemed compensation by the Financial Industry Regulatory Authority, or FINRA, and are therefore subject to a 180-day lock-up pursuant to Rule 5110(g)(1) of FINRA. The Representative (or permitted assignees under the Rule) may not sell, transfer, assign, pledge or hypothecate the Representative’s Warrants or the securities underlying the Representative’s Warrants, nor will they engage in any hedging, short sale, derivative, put or call transaction that would result in the effective economic disposition of the Representative’s Warrants or the underlying securities for a period of six months from the date of commencement of sales of this Offering, except to any FINRA member participating in the offering and their bona fide officers or partners. The Representative’s Warrants will provide for adjustment in the number and price of such Representative’s Warrants (and the common stock underlying such Representative’s Warrants), but only to prevent dilution in the event of a forward or reverse stock split, stock dividend or similar recapitalization. Additionally, the Representative will not receive or accrue cash dividends prior to the exercise or conversion of the Representative’s Warrants.
(bc) The 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.
(cd) 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 Offering, including the 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 filing fees and expenses in connection with filings with FINRA’s Public Offering System;
(iii) all fees, disbursements and expenses of the Company’s counsel and accountants in connection with the registration of the Securities under the Act and the Offering;
(iv) all reasonable expenses in connection with the qualifications of the Securities for offering and sale under state or foreign securities or blue sky laws, if necessary;
(v) all fees and expenses in connection with listing the Securities on a national securities exchange;
(vi) all reasonable travel expenses of the Company’s 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;
(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.
(de) It is understood, however, that except as provided in this Section 6, and Sections 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 6, 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, representing an advance to be applied towards the accountable expenses allowance (the “Advances”), all documented 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 $200,000250,000, including the Advances. To , and (ii) to the extent that the Underwriters’ outAccountable Out-of-pocket expenses 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 which they are offering:
(i) an : An underwriting discount equal to seven an aggregate of eight percent (78%) of the aggregate gross proceeds raised in the Offering;
(ii) a non-accountable expense allowance Offering and such number of one percent (1%) of the gross proceeds of the Offering;
(iii) an accountable expense allowance of up to $200,000, 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;
(iv) a right of first refusal Common Stock Purchase Warrants (the “Right of First RefusalUnderwriters Warrants”), exercisable ) to the Representatives or their permitted designees at the sole discretion of the representative for twelve months from the Closing Date, to provide investment banking service to the Company on terms that are the same or more favorable to the Company comparing to terms offered to the Company by other underwriters or placement agents. For these purposes, the investment banking service includes, without limitation, (a) acting as leading manager for any underwritten public offering; (b) acting as exclusive placement agent, initial purchaser in connection with any private offering of securities of the Company and (c) acting as financial advisor in connection with any sale or other transfer by the Company, directly or indirectly, of a majority or controlling portion of its capital stock or assets to another entity, any purchase or other transfer by another entity, directly or indirectly, of a majority or controlling portion of the capital stock or assets of the Company, and any merger or consolidation of the Company with another entity. The Right of First Refusal shall be subject to FINRA Rule 5110(g)(5). The Company shall notify the Representative of its or its subsidiary’s intention to pursue an investment banking service, including the material terms thereof, by providing written notice thereof by electronic mail or overnight courier service addressed to the Representative. If the Representative declines the terms of such investment banking service or fails to notify the Company of its intent to exercise its Right of First Refusal with respect to any investment banking services within fifteen (15) Business Days after the mailing of such written notice, then the Representative shall have no further claim or right with respect to the investment banking service. The Representative may electpurchase, in its sole and absolute discretionthe aggregate, not to exercise its Right shares of First Refusal with respect to any investment banking services; provided that any such election, rejection, waiver or failure to respond or act, by the Representative shall not adversely affect the Representative’s Right of First Refusal with respect to any other investment banking services during the twelve (12) month period agreed to above. The terms and conditions of any such engagements shall be set forth in separate agreements and may be subject to, among other things, satisfactory completion of due diligence by the Representative, market conditions, the absence of a material adverse change to the Company’s business, financial condition and prospects, approval of the Representative’s internal committee and any other conditions that the Representative may deem appropriate for transactions of such nature; and
(v) warrants to purchase a number of our shares Common Stock equal to an aggregate of 5.08% of the total aggregate number of common stock Firm Shares sold in this offering (the “Representative’s Warrants”), which will be issued in compliance with FINRA Rule 5110(g)(8). The Representative’s Warrants will have an exercise price equal to 120% of the offering price of the common stock sold in this offering and may be exercised on a cashless basis. The Representative’s Warrants are exercisable commencing from six months after the date of commencement of sales of the Offering and will expire five years after the issuance date. The Representative’s Warrants provide for one demand registration of the sale of the underlying shares of common stock at the Company’s expense, an additional demand registration at the warrant holders’ expense and/or unlimited piggy-back registration rights at the Company’s expense, so that they are registered in this registration statement. The demand registration rights and the unlimited piggyback registration rights will only be exercisable within five years from the commencement of the Offering. The Representative’s Underwriters Warrants and the common stock underlying the Representative’s Warrantsshall be in customary form reasonably acceptable to Representatives, have been deemed compensation by a term of 5 years and an exercise price of 110% of the Financial Industry Regulatory Authority, or FINRA, and are therefore subject to a 180-day lock-up pursuant to Rule 5110(g)(1) price of FINRASecurities sold in the Offering. The Representative (or permitted assignees under the Rule) may Underwriters Warrants shall not sell, transfer, assign, pledge or hypothecate the Representative’s Warrants or the securities underlying the Representative’s Warrants, nor will they engage in any hedging, short sale, derivative, put or call transaction that would result in the effective economic disposition of the Representative’s Warrants or the underlying securities be transferable for a period of six months from the date of commencement of sales of this Offering, the Offering except to any as permitted by FINRA member participating in the offering and their bona fide officers or partners. The Representative’s Warrants will provide for adjustment in the number and price of such Representative’s Warrants (and the common stock underlying such Representative’s WarrantsRule 5110(g)(1), but only to prevent dilution in the event of a forward or reverse stock split, stock dividend or similar recapitalization. Additionally, the Representative will not receive or accrue cash dividends prior to the exercise or conversion of the Representative’s Warrants.
(bi) If within fifteen (15) months after the date of termination of this Agreement if no Closing has occurred, securities are sold by the Company to investors directly introduced to the Company by the Representatives on behalf of the Company, then the Company (unless otherwise agreed to in writing by the Representatives) shall pay to the Representatives at the time of each such sale, a cash fee equal to eight percent (8%) of the aggregate gross proceeds with respect to any such sale. Upon termination of this Agreement and at the request of the Company, the Representatives will provide the Company with a list of investors so identified by the Representatives, respectively, on behalf of the Company.
(ii) If within fifteen (15) months after (and conditional upon) the consummation of the Offering, the Company or any of its subsidiaries (i) decides to dispose of or acquire business units or acquire any of its outstanding securities or make any exchange or tender offer or enter into a merger, consolidation or other business combination or any recapitalization, reorganization, restructuring or other similar transaction, including, without limitation, an extraordinary dividend or distributions or a spin-off or split-off, and the Company decides to retain a financial advisor for such transaction, the Representatives (or any affiliate designated by the Representatives) shall have the exclusive right to act as the Company’s financial advisor(s) for any such transaction (each with a 50% right of participation/economics); or (ii) decides to finance or refinance any indebtedness using a manager or agent, the Representatives (or any affiliate designated by the Representatives) shall have the exclusive right to act as joint book runners, co-lead managers, co-lead placement agents or co-lead agents with respect to such financing or refinancing (each with a 50% right of participation/economics); or (iii) decides to raise funds by means of a public offering or a private placement of equity or debt securities using an underwriter or placement agent, the Representatives (or any affiliate designated by the Representatives) shall have the exclusive right to act as joint book runners, co-lead underwriters or co-lead placement agents for such financing (each with a 50% right of participation/economics). The Company shall provide the Representatives no less than ten (10) days’ notice of its election to engage in any such transactions, which notice shall contain a brief description of the proposed transaction. If neither the Representatives respond within such ten (10) day period, they shall be deemed to have rejected the right to participate in the subject transaction. If either Representatives or one of their affiliates decide to accept any such engagement, the Company shall enter into a customary engagement agreement related to such transaction with the Representatives, which agreement will contain, among other things, provisions for customary fees for transactions of similar size and nature and the provisions of this Agreement, including indemnification, which are appropriate to such a transaction, and shall stipulate that each of the Representatives (should both Representatives accept the engagement) shall have a 50% right of participation/economics.
(c) The Underwriters reserve Representatives 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.
(cd) Whether or not the transactions contemplated by this Agreement, the Registration Statement Statement, the General Disclosure Package and the Prospectus are consummated or this Agreement is terminated, the Company hereby agrees to pay all costs and expenses incident to the Offering, including the 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 's Public Offering System;
(iii) all fees, disbursements and expenses of the Company’s 's counsel and accountants in connection with the registration of the Securities under the Securities Act and the Offering;
(iv) all reasonable expenses in connection with the qualifications of the Securities for offering and sale under state or foreign securities or blue sky laws;
(v) all fees and expenses in connection with listing the Securities on a national securities exchangethe Nasdaq Capital Market;
(vi) all reasonable travel expenses of the Company’s 's 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;
Securities (vii) "Road Show Expenses"); provide, however, that all travel and lodging expenses of the road show expenses incurred Representatives in excess of $5,000 in the aggregate shall be subject to prior written approval by the Company;
(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; and
(x) all other costs, fees and expenses up to $[ ] 2incident to the Offering that are not otherwise specifically provided for in this Section 6, including Underwriters' Counsel's fees up to $150,000 and up to $100,000 for non-legal expenses Company (it being agreed that the Company has previously advanced $50,000 to the Representatives for non-legal expenses and $30,000 for legal expenses).
(de) It is understood, however, that except as provided in this Section 6, and Sections 8, 9 and 11(d12(d) hereof, the Underwriters will pay all of their own costs and expenses. Notwithstanding anything to the contrary in this Section 6, 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, 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 $200,000, 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
