Covenants and Agreements of the Company. The Company covenants and agrees with you that: (a) Except as contemplated or described in this Agreement or in a public disclosure made prior to the date hereof, it will not, prior to the Closing Date, incur any material liability or obligation, direct or contingent, or enter into any material transaction, in each case, other than in the ordinary course of business. It will not, prior to the Closing Date, declare or pay any dividend on the Common Stock or make any distribution on the Common Stock payable to stockholders of record on a date prior to the Closing Date. (b) It will cooperate with you to enable the Shares to be qualified for sale under the securities laws of such jurisdictions as you may designate, subject to approval by the Company, and at your request will make such applications and furnish such information as may be required of it for that purpose; provided, however, that you and the Company shall first determine whether an exemption from registration other than the Uniform Limited Offering Exemption (ULOE) or a similar exemption is available in each such jurisdiction and the Company shall not be required to qualify to do business or to file a general consent to service of process in any such jurisdiction or to subject itself to taxation. It will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualifications in effect for so long a period as you may reasonably request for the distribution of the Shares. (c) It will make available to you and each purchaser of Shares at a reasonable time prior to the Closing Date the opportunity to ask questions and receive answers concerning the terms and conditions of the Offering and to obtain any additional information that the Company possesses or can acquire without unreasonable effort or expense that is necessary to verify the accuracy of any information in the Exchange Act Documents or otherwise furnished by the Company to you or any purchaser of Shares; provided, however, that the Company shall not be required to disclose any material nonpublic information to any purchaser of Shares. (d) It will file all reports required by Regulation D with regard to sales of the Shares and use of the proceeds therefrom; provided that you provide all relevant information to the Company in writing as to purchasers of the Shares required for such filings. (e) It will not offer or sell any securities of the Company that are of the same or a similar class as the Shares for a period of six months after the Closing Date, other than those offers or sales of securities under an employee benefit plan as defined in Rule 405 under the Act, in connection with options, warrants, or convertible securities outstanding as of the Closing Date, or in connection with an acquisition of assets or another business by the Company if such offering will be integrated with the Offering of the Shares pursuant to this Agreement for purposes of the exemptions under Regulation D, so as to invalidate the exemption from registration relied on to offer and sell the Shares. (g) For a period of at least 18 months following the Closing Date, the Company will maintain the registration of its Common Stock under Section 12 of the Exchange Act so long as the Exchange Act requires it to be so registered, will comply in all respects with its reporting and filing obligations under the Exchange Act, and will not take any action or file any document (whether or not permitted by the Exchange Act or the rules thereunder) to terminate or suspend such registration or to terminate or suspend its reporting and filing obligations under said Act unless required to do so by the Exchange Act.
Appears in 2 contracts
Samples: Placement Agent Agreement (Fi Tek Vii Inc), Placement Agent Agreement (Ronco Corp)
Covenants and Agreements of the Company. The Company covenants and agrees with you that:
(a) Except as contemplated or described in this Agreement or in a public disclosure made prior to the date hereof, it will not, prior to the Closing Date, incur any material liability or obligation, direct or contingent, or enter into any material transaction, in each case, other than in the ordinary course of business. It will not, prior to the Closing Date, declare or pay any dividend on the Common Stock or make any distribution on the Common Stock payable to stockholders shareholders of record on a date prior to the Closing Date.
(b) It will cooperate with you to enable the Shares to be qualified for sale under the securities laws of such jurisdictions as you may designate, subject to approval by the Company, and at your request will make such applications and furnish such information as may be required of it for that purpose; provided, however, that you and the Company shall first determine whether an exemption from registration other than the Uniform Limited Offering Exemption (ULOE) or a similar exemption is available in each such jurisdiction and the Company shall not be required to qualify to do business or to file a general consent to service of process in any such jurisdiction or to subject itself to taxation. It will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualifications in effect for so long a period as you may reasonably request for the distribution of the Shares.
(c) It will make available to you and each purchaser of Shares at a reasonable time prior to the Closing Date the opportunity to ask questions and receive answers concerning the terms and conditions of the Offering and to obtain any additional information that the Company possesses or can acquire without unreasonable effort or expense that is necessary to verify the accuracy of any information in the Exchange Act Documents or otherwise furnished by the Company to you or any purchaser of Shares; provided, however, that the Company shall not be required to disclose any material nonpublic information to any purchaser of Shares.
(d) It will file all reports required by Regulation D with regard to sales of the Shares and use of the proceeds therefrom; provided that you provide all relevant information to the Company in writing as to purchasers of the Shares required for such filings.
(e) It will not offer or sell any securities of the Company that are of the same or a similar class as the Shares for a period of six months after the Closing Date, other than those offers or sales of securities under an employee benefit plan as defined in Rule 405 under the Act, in connection with options, warrants, or convertible securities outstanding as of the Closing Date, or in connection with an acquisition of assets or another business by the Company if such offering will be integrated with the Offering of the Shares pursuant to this Agreement for purposes of the exemptions under Regulation D, so as to invalidate the exemption from registration relied on to offer and sell the Shares.
(g) For a period of at least 18 months following the Closing Date, the Company will maintain the registration of its Common Stock under Section 12 of the Exchange Act so long as the Exchange Act requires it to be so registered, will comply in all respects with its reporting and filing obligations under the Exchange Act, and will not take any action or file any document (whether or not permitted by the Exchange Act or the rules thereunder) to terminate or suspend such registration or to terminate or suspend its reporting and filing obligations under said Act unless required to do so by the Exchange Act.
(h) The Company shall prepare and file with the Nasdaq Stock Market an additional shares listing application covering the Shares and take all steps necessary to cause such shares to be approved for listing as soon as practicable thereafter.
(i) For a period of at least 18 months following the Closing Date, the Company will use its commercially reasonable best efforts (i) to timely file all reports required to be filed by the Company after the date hereof under the Securities Act and the Exchange Act (including the reports pursuant to Section 13(a) or 15(d) of the Exchange Act referred to in subparagraph (c)(1) of Rule 144) and the rules and regulations adopted by the Commission thereunder), (ii) if the Company is not required to file reports pursuant to such sections, it will prepare and furnish to the purchasers of Shares and make publicly available in accordance with Rule 144(c) such information as is required for the purchasers to sell the Shares under Rule 144, and (iii) to take such further action as any holder of Shares may reasonably request, all to the extent required from time to time to enable the purchasers to sell Shares without registration under the Securities Act within the limitation of the exemptions provided by Rule 144, including causing its attorneys to issue and deliver any appropriate legal opinion required to permit a purchaser to sell Shares under Rule 144 upon receipt of appropriate documentation relating to such sale.
(j) Unless previously prepared and filed, simultaneously with the Closing, the Company agrees that it shall prepare and file with the Commission a preliminary proxy statement (as amended and supplemented, the "Proxy Statement") in connection with the meeting of its shareholders (the "Shareholders Meeting"). At the Shareholders Meeting the Company will seek to obtain shareholder approval ("Shareholder Approval") of the issuance of the Conversion Shares and of the increase in the authorized shares of Common Stock of the Company from 35,000,000 to 100,000,000 shares. The Company shall use its reasonable efforts to respond to written comments of the Commission and its staff, and, to the extent permitted by law, to cause the Proxy Statement to be mailed to the Company's shareholders as promptly as practicable after responding to all such comments to the satisfaction of the Commission staff. The Company shall take all reasonable steps necessary to file with the Commission and have declared effective or cleared by the Commission any amendment or supplement to the Proxy Statement so as to correct the same and cause the Proxy Statement as so corrected to be disseminated to the shareholders of the Company, in each case to the extent required by applicable law.
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with you that:
(a) Except as contemplated or described in this Agreement or in a public disclosure made prior to the date hereof, it will not, prior to the initial Closing Date, incur any material liability or obligation, direct or contingent, or enter into any material transaction, in each case, other than in the ordinary course of business. It will not, prior to the initial Closing Date, declare or pay any dividend on the Common Stock or make any distribution on the Common Stock payable to stockholders shareholders of record on a date prior to the initial Closing Date.
(b) It will cooperate with you to enable the Shares to be qualified for sale under the securities laws of such jurisdictions as you may designate, subject to approval by the Company, and at your request will make such applications and furnish such information as may be required of it for that purpose; provided, however, that you and the Company shall first determine whether an exemption from registration other than the Uniform Limited Offering Exemption (ULOE) or a similar exemption is available in each such jurisdiction and the Company shall not be required to qualify to do business or to file a general consent to service of process in any such jurisdiction or to subject itself to taxation. It will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualifications in effect for so long a period as you may reasonably request for the distribution of the Shares.
(c) It will make available to you and each purchaser of Shares at a reasonable time prior to the each Closing Date the opportunity to ask questions and receive answers concerning the terms and conditions of the Offering and to obtain any additional information that the Company possesses or can acquire without unreasonable effort or expense that is necessary to verify the accuracy of any information in the Exchange Act Documents or otherwise furnished by the Company to you or any purchaser of Shares; provided, however, that the Company shall not be required to disclose any material nonpublic information to any purchaser of Shares.
(d) It will file all reports required by Regulation D with regard to sales of the Shares and use of the proceeds therefrom; provided that you provide all relevant information to the Company in writing as to purchasers of the Shares required for such filings.
(e) It will not offer or sell any securities of the Company that are of the same or a similar class as the Shares for a period of six months after the final Closing Date, other than those offers or sales of securities under an employee benefit plan as defined in Rule 405 under the Act, in connection with options, warrants, or convertible securities outstanding as of the Closing Date, or in connection with an acquisition of assets or another business by the Company if such offering will be integrated with the Offering of the Shares pursuant to this Agreement for purposes of the exemptions under Regulation D, so as to invalidate the exemption from registration relied on to offer and sell the Shares.
(g) For a period of at least 18 months following the final Closing Date, the Company will maintain the registration of its Common Stock under Section 12 of the Exchange Act so long as the Exchange Act requires it to be so registered, will comply in all respects with its reporting and filing obligations under the Exchange Act, and will not take any action or file any document (whether or not permitted by the Exchange Act or the rules thereunder) to terminate or suspend such registration or to terminate or suspend its reporting and filing obligations under said Act unless required to do so by the Exchange Act.
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with you that:
(a) Except as contemplated or described in this Agreement or in a public disclosure made prior to the date hereof, it will not, prior to the Closing Date, incur any material liability or obligation, direct or contingent, or enter into any material transaction, in each case, other than in the ordinary course of business. It will not, prior to the Closing Date, declare or pay any dividend on the Common Stock or make any distribution on the Common Stock payable to stockholders shareholders of record on a date prior to the Closing Date.
(b) It will cooperate with you to enable the Shares to be qualified for sale under the securities laws of such jurisdictions as you may designate, subject to approval by the Company, and at your request will make such applications and furnish such information as may be required of it for that purpose; provided, however, that you and the Company shall first determine whether an exemption from registration other than the Uniform Limited Offering Exemption (ULOE) or a similar exemption is available in each such jurisdiction and the Company shall not be required to qualify to do business or to file a general consent to service of process in any such jurisdiction or to subject itself to taxation. It will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualifications in effect for so long a period as you may reasonably request for the distribution of the Shares.
(c) It will make available to you and each purchaser of Shares at a reasonable time prior to the Closing Date the opportunity to ask questions and receive answers concerning the terms and conditions of the Offering and to obtain any additional information that the Company possesses or can acquire without unreasonable effort or expense that is necessary to verify the accuracy of any information in the Exchange Act Documents or otherwise furnished by the Company to you or any purchaser of Shares; provided, however, that the Company shall not be required to disclose any material nonpublic information to any purchaser of Shares.
(d) It will file all reports required by Regulation D with regard to sales of the Shares and use of the proceeds therefrom; provided that you provide all relevant information to the Company in writing as to purchasers of the Shares required for such filings.
(e) It will not offer or sell any securities of the Company that are of the same or a similar class as the Shares for a period of six months after the Closing Date, other than those offers or sales of securities under an employee benefit plan as defined in Rule 405 under the Act, in connection with options, warrants, or convertible securities outstanding as of the Closing Date, or in connection with an acquisition of assets or another business by the Company if such offering will be integrated with the Offering of the Shares pursuant to this Agreement for purposes of the exemptions under Regulation D, so as to invalidate the exemption from registration relied on to offer and sell the Shares.
(g) For a period of at least 18 months following the Closing Date, the Company will maintain the registration of its Common Stock under Section 12 of the Exchange Act so long as the Exchange Act requires it to be so registered, will comply in all respects with its reporting and filing obligations under the Exchange Act, and will not take any action or file any document (whether or not permitted by the Exchange Act or the rules thereunder) to terminate or suspend such registration or to terminate or suspend its reporting and filing obligations under said Act unless required to do so by the Exchange Act.
(h) The Company shall prepare and file with the American Stock Exchange an additional shares listing application covering the Shares and take all steps necessary to cause such shares to be approved for listing as soon as practicable thereafter.
(i) For a period of at least 18 months following the Closing Date, the Company will use its commercially reasonable best efforts (i) to timely file all reports required to be filed by the Company after the date hereof under the Securities Act and the Exchange Act (including the reports pursuant to Section 13(a) or 15(d) of the Exchange Act referred to in subparagraph (c)(1) of Rule 144) and the rules and regulations adopted by the Commission thereunder), (ii) if the Company is not required to file reports pursuant to such sections, it will prepare and furnish to the purchasers of Shares and make publicly available in accordance with Rule 144(c) such information as is required for the purchasers to sell the Shares under Rule 144, and (iii) to take such further action as any holder of Shares may reasonably request, all to the extent required from time to time to enable the purchasers to sell Shares without registration under the Securities Act within the limitation of the exemptions provided by Rule 144, including causing its attorneys to issue and deliver any appropriate legal opinion required to permit a purchaser to sell Shares under Rule 144 upon receipt of appropriate documentation relating to such sale.
(j) Unless previously prepared and filed, simultaneously with the Closing, the Company agrees that it shall prepare and file with the Commission a preliminary proxy statement (as amended and supplemented, the "Proxy Statement") in connection with the meeting of its shareholders (the "Shareholders Meeting"). At the Shareholders Meeting the Company will seek to obtain shareholder approval ("Shareholder Approval") of the issuance of the Conversion Shares. The Company shall use its reasonable efforts to respond to written comments of the Commission and its staff, and, to the extent permitted by law, to cause the Proxy Statement to be mailed to the Company's shareholders as promptly as practicable after responding to all such comments to the satisfaction of the Commission staff. The Company shall take all reasonable steps necessary to file with the Commission and have declared effective or cleared by the Commission any amendment or supplement to the Proxy Statement so as to correct the same and cause the Proxy Statement as so corrected to be disseminated to the shareholders of the Company, in each case to the extent required by applicable law.
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with you that:
(a) Except as contemplated or described in this Agreement, the Exchange Agreement or in a public disclosure made prior to the date hereof, it will not, prior to the Closing Date, incur any material liability or obligation, direct or contingent, or enter into any material transaction, in each case, other than in the ordinary course of business. It will not, prior to the Closing Date, declare or pay any dividend on the Common Stock or make any distribution on the Common Stock payable to stockholders of record on a date prior to the Closing Date.
(b) It will cooperate with you to enable the Shares to be qualified for sale under the securities laws of such jurisdictions as you may designate, subject to approval by the Company, and at your request will make such applications and furnish such information as may be required of it for that purpose; provided, however, that you and the Company shall first determine whether an exemption from registration other than the Uniform Limited Offering Exemption (ULOE) or a similar exemption is available in each such jurisdiction and the Company shall not be required to qualify to do business or to file a general consent to service of process in any such jurisdiction or to subject itself to taxation. It will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualifications in effect for so long a period as you may reasonably request for the distribution of the Shares.
(c) It will make available to you and each purchaser of Shares at a reasonable time prior to the Closing Date the opportunity to ask questions and receive answers concerning the terms and conditions of the Offering and to obtain any additional information that the Company possesses or can acquire without unreasonable effort or expense that is necessary to verify the accuracy of any information in the Exchange Act Documents or otherwise furnished by the Company to you or any purchaser of Shares; provided, however, that the Company shall not be required to disclose any material nonpublic information to any purchaser of Shares.
(d) It will file all reports required by Regulation D with regard to sales of the Shares and use of the proceeds therefrom; provided that you provide all relevant information to the Company in writing as to purchasers of the Shares required for such filings.
(e) It will not offer or sell any securities of the Company that are of the same or a similar class as the Shares for a period of six months after the Closing Date, other than those offers or sales of securities under an employee benefit plan as defined in Rule 405 under the Securities Act, in connection with options, warrants, or convertible securities outstanding as of the Closing Date, or in connection with an acquisition of assets or another business by the Company Company, if such offering will be integrated with the Offering of the Shares pursuant to this Agreement for purposes of the exemptions under Regulation D, so as to invalidate the exemption from registration relied on to offer and sell the Shares.
(g) For a period of at least 18 months following the Closing Date, the Company will maintain the registration of its Common Stock under Section 12 of the Exchange Act so long as the Exchange Act requires it to be so registered, will comply in all respects with its reporting and filing obligations under the Exchange Act, and will not take any action or file any document (whether or not permitted by the Exchange Act or the rules thereunder) to terminate or suspend such registration or to terminate or suspend its reporting and filing obligations under said Act unless required to do so by the Exchange Act.
Appears in 1 contract
Samples: Placement Agent Agreement (Century Pacific Financial Corp)
Covenants and Agreements of the Company. The Company covenants and agrees with you that:
(a) Except as contemplated or described in this Agreement or in a public disclosure made prior to the date hereofAgreement, it will not, prior to the Closing Date, incur any material liability or obligation, direct or contingent, or enter into any material transaction, in each case, other than in the ordinary course of business. It will not, prior to the Closing Date, declare or pay any dividend on the Common Stock or make any distribution on the Common Stock payable to stockholders of record on a date prior to the Closing DateDate or declare or pay any bonuses to employees or increase any the compensation of any officers of the Company except normal and customary bonuses and increases.
(b) It will cooperate with you to enable the Shares to be qualified for sale under the securities laws of such jurisdictions as you may designate, subject to approval by the Company, and at your request will make such applications and furnish such information as may be required of it for that purpose; provided, however, that you and the Company shall first determine whether an exemption from registration other than the Uniform Limited Offering Exemption (ULOE) or a similar exemption is available in each such jurisdiction and the Company shall not be required to qualify to do business or to file a general consent to service of process in any such jurisdiction or to subject itself to taxation. It will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualifications in effect for so long a period as you may reasonably request for the distribution of the Shares.
(c) It will make available to you and each purchaser of Shares at a reasonable time prior to the Closing Date the opportunity to ask questions and receive answers concerning the terms and conditions of the Offering and to obtain any additional information that the Company possesses or can acquire without unreasonable effort or expense that is necessary to verify the accuracy of any information in the Exchange Act Documents or otherwise furnished by the Company to you or any purchaser of Shares; provided, however, that the Company shall not be required to disclose any material nonpublic information to any purchaser of Shares.
(d) It will file all reports required by Regulation D with regard to sales of the Shares and use of the proceeds therefrom; provided that you provide all relevant information to the Company in writing as to purchasers of the Shares required for such filings.
(e) It will not offer or sell any securities of the Company that are of the same or a similar class as the Shares for a period of six months after the Closing Date, other than those offers or sales of securities under an employee benefit plan as defined in Rule 405 under the Act, in connection with options, warrants, or convertible securities outstanding as of the Closing Date, or in connection with an acquisition of assets or another business by the Company Company, if such offering will be integrated with the Offering of the Shares pursuant to this Agreement for purposes of the exemptions under Regulation D, so as to invalidate the exemption from registration relied on to offer and sell the Shares.
(gf) For a period of at least 18 months following It will use its commercially reasonable best efforts to, as promptly as practicable after the Closing Date, but in any event within 60 days of the Closing Date (the "Filing Due Date"), file with the Commission a shelf registration (the "Registration Statement") on Form S-3 (or such successor form) relating to the resale of the Shares by the purchasers of the Shares. If a Registration Event occurs, then the Company will maintain make payments to the purchasers of the Shares as full liquidated damages to the purchasers by reason thereof, at the rate of $0.05 per share per month, for each calendar month of the registration default period (pro rated for any period less than 30 days). Each such payment shall be due and payable within five days after the end of its Common Stock under Section 12 each calendar month of the Exchange Act so long as registration default period. Such payments shall be in full compensation to the Exchange Act requires it to be so registered, will comply in all respects with its reporting purchasers and filing obligations under shall constitute the Exchange Act, and will not take purchasers' exclusive remedy for such events. A "Registration Event" means the occurrence of any action or file any document (whether or not permitted by of the Exchange Act or the rules thereunder) to terminate or suspend such registration or to terminate or suspend its reporting and filing obligations under said Act unless required to do so by the Exchange Act.following events:
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with you that:
(a) Except as contemplated or described in this Agreement or in a public disclosure made prior to the date hereofAgreement, it will not, prior to the Closing Date, incur any material liability or obligation, direct or contingent, or enter into any material transaction, in each case, other than in the ordinary course of business. It will not, prior to the Closing Date, declare or pay any dividend on the Common Stock or make any distribution on the Common Stock payable to stockholders of record on a date prior to the Closing DateDate or declare or pay any bonuses to employees or increase any the compensation of any officers of the Company except normal and customary bonuses and increases.
(b) It will cooperate with you to enable the Shares to be qualified for sale under the securities laws of such jurisdictions as you may designate, subject to approval by the Company, and at your request will make such applications and furnish such information as may be required of it for that purpose; provided, however, that you and the Company shall first determine whether an exemption from registration other than the Uniform Limited Offering Exemption (ULOE) or a similar exemption is available in each such jurisdiction and the Company shall not be required to qualify to do business or to file a general consent to service of process in any such jurisdiction or to subject itself to taxation. It will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualifications in effect for so long a period as you may reasonably request for the distribution of the Shares.
(c) It will make available to you and each purchaser of Shares at a reasonable time prior to the Closing Date the opportunity to ask questions and receive answers concerning the terms and conditions of the Offering and to obtain any additional information that the Company possesses or can acquire without unreasonable effort or expense that is necessary to verify the accuracy of any information in the Exchange Act Documents or otherwise furnished by the Company to you or any purchaser of Shares; provided, however, that the Company shall not be required to disclose any material nonpublic information to any purchaser of Shares.
(d) It will file all reports required by Regulation D with regard to sales of the Shares and use of the proceeds therefrom; provided that you provide all relevant information to the Company in writing as to purchasers of the Shares required for such filings.
(e) It will not offer or sell any securities of the Company that are of the same or a similar class as the Shares for a period of six months after the Closing Date, other than those offers or sales of securities under an employee benefit plan as defined in Rule 405 under the Act, in connection with options, warrants, or convertible securities outstanding as of the Closing Date, or in connection with an acquisition of assets or another business by the Company Company, if such offering will be integrated with the Offering of the Shares pursuant to this Agreement for purposes of the exemptions under Regulation D, so as to invalidate the exemption from registration relied on to offer and sell the Shares.
(gf) For a period of at least 18 months following It will use its commercially reasonable best efforts to, as promptly as practicable after the Closing Date, but in any event within 60 days of the Closing Date (the "Filing Due Date"), file with the Commission a shelf registration (the "Registration Statement") on Form S-3 (or such successor form) relating to the resale of the Shares by the purchasers of the Shares and to the shares underlying the Placement Agent Warrants.. If a Registration Event occurs, then the Company will maintain make payments to the purchasers of the Shares as full liquidated damages to the purchasers by reason thereof, at the rate of $0.05 per share per month, for each calendar month of the registration default period (pro rated for any period less than 30 days). Each such payment shall be due and payable within five days after the end of its Common Stock under Section 12 each calendar month of the Exchange Act so long as registration default period. Such payments shall be in full compensation to the Exchange Act requires it to be so registered, will comply in all respects with its reporting purchasers and filing obligations under shall constitute the Exchange Act, and will not take purchasers' exclusive remedy for such events. A "Registration Event" means the occurrence of any action or file any document (whether or not permitted by of the Exchange Act or the rules thereunder) to terminate or suspend such registration or to terminate or suspend its reporting and filing obligations under said Act unless required to do so by the Exchange Act.following events:
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with you that:
(a) Except as contemplated or described in this Agreement or in a public disclosure made prior to the date hereof, it will not, prior to the Closing Date, incur any material liability or obligation, direct or contingent, or enter into any material transaction, in each case, other than in the ordinary course of business. It will not, prior to the Closing Date, declare or pay any dividend on the Common Stock or make any distribution on the Common Stock payable to stockholders shareholders of record on a date prior to the Closing Date.
(b) It will cooperate with you to enable the Shares Securities to be qualified for sale under the securities laws of such jurisdictions as you may designate, subject to approval by the Company, and at your request will make such applications and furnish such information as may be required of it for that purpose; provided, however, that you and the Company shall first determine whether an exemption from registration other than the Uniform Limited Offering Exemption (ULOE) or a similar exemption is available in each such jurisdiction and the Company shall not be required to qualify to do business or to file a general consent to service of process in any such jurisdiction or to subject itself to taxationjurisdiction. It will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualifications in effect for so long a period as you may reasonably request for the distribution of the SharesSecurities.
(c) It will make available to you and each purchaser of Shares Units at a reasonable time prior to the Closing Date the opportunity to ask questions and receive answers concerning the terms and conditions of the Offering and to obtain any additional information that the Company possesses or can acquire without unreasonable effort or expense that is necessary to verify the accuracy of any information in the Exchange Act Documents or otherwise furnished by the Company to you or any purchaser of SharesUnits; provided, however, that the Company shall not be required to disclose any material nonpublic information to any purchaser of SharesUnits.
(d) It will file all reports required by Regulation D with regard to sales of the Shares Securities and use of the proceeds therefrom; provided provided, however, that you provide all relevant information to the Company in writing as to purchasers of the Shares Securities required for such filings.
(e) It will not offer or sell any securities of the Company that are of the same or a similar class as the Shares Units during the Offering Period or for a period of six months after the Closing Date, other than those offers or sales of securities under an employee benefit plan as defined in Rule 405 under the Act, in connection with options, warrants, or convertible securities outstanding as of the Closing Date, or in connection with an acquisition of assets or another business by the Company if such offering will be integrated with the Offering of the Shares Units pursuant to this Agreement for purposes of the exemptions under Regulation D, so as to invalidate the exemption from registration relied on to offer and sell the SharesUnits.
(gf) For a period of at least 18 months following the Closing Date, the Company will maintain the registration of its Common Stock under Section 12 of the Exchange Act so long as the Exchange Act requires it to be so registered, will comply in all respects with its reporting and filing obligations under the Exchange Act, and will not take any action or file any document (whether or not permitted by the Exchange Act or the rules thereunder) to terminate or suspend such registration or to terminate or suspend its reporting and filing obligations under said Act unless required to do so by the Exchange Act.
(g) For a period of at least 18 months following the Closing Date, the Company will use its commercially reasonable best efforts (i) to timely file all reports required to be filed by the Company after the date hereof under the Securities Act and the Exchange Act (including the reports pursuant to Section 13(a) or 15(d) of the Exchange Act referred to in subparagraph (c)(1) of Rule 144) and the rules and regulations adopted by the Commission thereunder), (ii) if the Company is not required to file reports pursuant to such sections, it will prepare and furnish to the purchasers of Units and make publicly available in accordance with Rule 144(c) such information as is required for the purchasers to sell the Securities under Rule 144, and (iii) to take such further action as any holder of Units may reasonably request, all to the extent required from time to time to enable the purchasers to sell Securities without registration under the Securities Act within the limitation of the exemptions provided by Rule 144, including causing its attorneys to issue and deliver any appropriate legal opinion required to permit a purchaser to sell Securities under Rule 144 upon receipt of appropriate documentation relating to such sale.
(h) No later than the fourth trading day following the Closing Date, the Company shall file a Current Report on Form 8-K disclosing the consummation of the transactions contemplated by this Agreement and attaching copies of the related agreements, and disclosing all material non-public information that has been communicated to the Investors by or on behalf of the Company in connection with the transactions contemplated by this Agreement and the Related Agreements. In addition, the Company shall make such other filings and notices in the manner and time required by the Securities and Exchange Commission in connection with the consummation of the transactions contemplated by this Agreement and the Related Agreements.
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with you that:
(a) Except as contemplated or described in this Agreement or in a public disclosure made prior to the date hereof, it will not, prior to the Closing Date, incur any material liability or obligation, direct or contingent, or enter into any material transaction, in each case, other than in the ordinary course of business. It will not, prior to the Closing Date, declare or pay any dividend on the Common Stock or make any distribution on the Common Stock payable to stockholders shareholders of record on a date prior to the Closing Date.
(b) It will cooperate with you to enable the Shares Notes and Warrants to be qualified for sale under the securities laws of such jurisdictions as you may designate, subject to approval by the Company, and at your request will make such applications and furnish such information as may be required of it for that purpose; provided, however, that you and the Company shall first determine whether an exemption from registration other than the Uniform Limited Offering Exemption (ULOE) or a similar exemption is available in each such jurisdiction and the Company shall not be required to qualify to do business or to file a general consent to service of process in any such jurisdiction or to subject itself to taxation. It will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualifications in effect for so long a period as you may reasonably request for the distribution of the SharesNotes and Warrants.
(c) It will make available to you and each purchaser of Shares Notes and Warrants at a reasonable time prior to the Closing Date the opportunity to ask questions and receive answers concerning the terms and conditions of the Offering and to obtain any additional information that the Company possesses or can acquire without unreasonable effort or expense that is necessary to verify the accuracy of any information in the Exchange Act Documents or otherwise furnished by the Company to you or any purchaser of SharesNotes and Warrants; provided, however, that the Company shall not be required to disclose any material nonpublic information to any purchaser of SharesNotes and Warrants.
(d) It will file all reports required by Regulation D with regard to sales of the Shares Notes and Warrants and use of the proceeds therefrom; provided that you provide all relevant information to the Company in writing as to purchasers of the Shares Notes and Warrants required for such filings.
(e) It will not offer or sell any securities of the Company that are of the same or a similar class as the Shares Notes and Warrants for a period of six months after the Closing Date, other than those offers or sales of securities under an employee benefit plan as defined in Rule 405 under the Act, in connection with options, warrants, or convertible securities outstanding as of the Closing Date, or in connection with an acquisition of assets or another business by the Company if such offering will be integrated with the Offering of the Shares Notes and Warrants pursuant to this Agreement for purposes of the exemptions under Regulation D, so as to invalidate the exemption from registration relied on to offer and sell the SharesNotes and Warrants.
(g) For a period of at least 18 months following the Closing Date, the Company will maintain the registration of its Common Stock under Section 12 of the Exchange Act so long as the Exchange Act requires it to be so registered, will comply in all respects with its reporting and filing obligations under the Exchange Act, and will not take any action or file any document (whether or not permitted by the Exchange Act or the rules thereunder) to terminate or suspend such registration or to terminate or suspend its reporting and filing obligations under said Act unless required to do so by the Exchange Act.
(h) The Company shall prepare and file with the American Stock Exchange an additional shares listing application covering the Conversion Shares and Warrants Shares and take all steps necessary to cause such shares to be approved for listing as soon as practicable thereafter.
(i) For a period of at least 18 months following the Closing Date, the Company will use its commercially reasonable best efforts (i) to timely file all reports required to be filed by the Company after the date hereof under the Securities Act and the Exchange Act (including the reports pursuant to Section 13(a) or 15(d) of the Exchange Act referred to in subparagraph (c)(1) of Rule 144) and the rules and regulations adopted by the Commission thereunder), (ii) if the Company is not required to file reports pursuant to such sections, it will prepare and furnish to the purchasers of Notes and Warrants and make publicly available in accordance with Rule 144(c) such information as is required for the purchasers to sell the Conversion Shares and Warrant Shares under Rule 144, and (iii) to take such further action as any holder of Conversion Shares and Warrant Shares may reasonably request, all to the extent required from time to time to enable the purchasers to sell Conversion Shares and Warrant Shares without registration under the Securities Act within the limitation of the exemptions provided by Rule 144, including causing its attorneys to issue and deliver any appropriate legal opinion required to permit a purchaser to sell Conversion Shares and Warrant Shares under Rule 144 upon receipt of appropriate documentation relating to such sale.
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and agrees with you that:
(a) Except as contemplated or described in this Agreement or in a public disclosure made prior to the date hereof, it will not, prior to the Closing Date, incur any material liability or obligation, direct or contingent, or enter into any material transaction, in each case, other than in the ordinary course of business. It will not, prior to the Closing Date, declare or pay any dividend on the Common Stock or make any distribution on the Common Stock payable to stockholders shareholders of record on a date prior to the Closing Date.
(b) It will cooperate with you to enable the Shares Securities to be qualified for sale under the securities laws of such jurisdictions as you may designate, subject to approval by the Company, and at your request will make such applications and furnish such information as may be required of it for that purpose; provided, however, that you and the Company shall first determine whether an exemption from registration other than the Uniform Limited Offering Exemption (ULOE) or a similar exemption is available in each such jurisdiction and the Company shall not be required to qualify to do business or to file a general consent to service of process in any such jurisdiction or to subject itself to taxationjurisdiction. It will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualifications in effect for so long a period as you may reasonably request for the distribution of the SharesSecurities.
(c) It will make available to you and each purchaser of Shares Units at a reasonable time prior to the Closing Date the opportunity to ask questions and receive answers concerning the terms and conditions of the Offering and to obtain any additional information that the Company possesses or can acquire without unreasonable effort or expense that is necessary to verify the accuracy of any information in the Exchange Act Documents or otherwise furnished by the Company to you or any purchaser of SharesUnits; provided, however, that the Company shall not be required to disclose any material nonpublic information to any purchaser of SharesUnits.
(d) It will file all reports required by Regulation D with regard to sales of the Shares Securities and use of the proceeds therefrom; provided provided, however, that you provide all relevant information to the Company in writing as to purchasers of the Shares Securities required for such filings.
(e) It will not offer or sell any securities of the Company that are of the same or a similar class as the Shares Units during the Offering Period or for a period of six months after the Closing Date, other than those offers or sales of securities under an employee benefit plan as defined in Rule 405 under the Act, in connection with options, warrants, or convertible securities outstanding as of the Closing Date, or in connection with an acquisition of assets or another business by the Company if such offering will be integrated with the Offering of the Shares Units pursuant to this Agreement for purposes of the exemptions under Regulation D, so as to invalidate the exemption from registration relied on to offer and sell the SharesUnits.
(gf) For a period of at least 18 months following the Closing Date, the Company will maintain the registration of its Common Stock under Section 12 of the Exchange Act so long as the Exchange Act requires it to be so registered, will comply in all respects with its reporting and filing obligations under the Exchange Act, and will not take any action or file any document (whether or not permitted by the Exchange Act or the rules thereunder) to terminate or suspend such registration or to terminate or suspend its reporting and filing obligations under said Act unless required to do so by the Exchange Act.
(g) The Company shall prepare and file with the American Stock Exchange an additional shares listing application covering the Common Stock and take all steps necessary to cause such shares to be approved for listing as soon as possible.
(h) For a period of at least 18 months following the Closing Date, the Company will use its commercially reasonable best efforts (i) to timely file all reports required to be filed by the Company after the date hereof under the Securities Act and the Exchange Act (including the reports pursuant to Section 13(a) or 15(d) of the Exchange Act referred to in subparagraph (c)(1) of Rule 144) and the rules and regulations adopted by the Commission thereunder), (ii) if the Company is not required to file reports pursuant to such sections, it will prepare and furnish to the purchasers of Units and make publicly available in accordance with Rule 144(c) such information as is required for the purchasers to sell the Securities under Rule 144, and (iii) to take such further action as any holder of Units may reasonably request, all to the extent required from time to time to enable the purchasers to sell Securities without registration under the Securities Act within the limitation of the exemptions provided by Rule 144, including causing its attorneys to issue and deliver any appropriate legal opinion required to permit a purchaser to sell Securities under Rule 144 upon receipt of appropriate documentation relating to such sale.
(i) No later than the fourth trading day following the Closing Date, the Company shall file a Current Report on Form 8-K disclosing the consummation of the transactions contemplated by this Agreement and attaching copies of the related agreements, and disclosing all material non-public information that has been communicated to the Investors by or on behalf of the Company in connection with the transactions contemplated by this Agreement and the Related Agreements. In addition, the Company shall make such other filings and notices in the manner and time required by the Securities and Exchange Commission in connection with the consummation of the transactions contemplated by this Agreement and the Related Agreements.
Appears in 1 contract
Samples: Placement Agent Agreement (Home Solutions of America Inc)
Covenants and Agreements of the Company. The Company covenants and agrees with you each Agent that:
(a) Except as contemplated or described in this Agreement or in a public disclosure made prior to the date hereof, it will not, prior to the Closing Date, incur any material liability or obligation, direct or contingent, or enter into any material transaction, in each case, other than in the ordinary course of business. It will not, prior to the Closing Date, declare or pay any dividend on the Common Stock or make any distribution on the Common Stock payable to stockholders of record on a date prior to the Closing Date.
(b) It will cooperate with you the Agents to enable the Shares and Warrants to be qualified for sale or eligible for offer and sale pursuant to an exemption from registration under the securities laws of such jurisdictions as you the Placement Agent may designate, subject to approval by the Company, and at your Rxxxxx’x request will make such applications and furnish such information as may be required of it for that purpose; provided, however, that you and the Company shall first determine whether an exemption from registration other than the Uniform Limited Offering Exemption (ULOE) or a similar exemption is available in each such jurisdiction and the Company shall not be required to qualify to do business or to file a general consent to service of process in any such jurisdiction or to subject itself to taxation. It will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualifications in effect for so long a period as you the Placement Agent may reasonably request for the distribution of the SharesShares and/or Warrants.
(cb) It will make available to you the Placement Agent and each purchaser of Shares Units at a reasonable time prior to the Closing Date closing the opportunity to ask questions and receive answers concerning the terms and conditions of the Offering and to obtain any additional information that the Company possesses or can acquire without unreasonable effort or expense that is necessary to verify the accuracy of any information in the Exchange Act Documents SEC Reports or otherwise furnished by the Company to you the Placement Agent or any purchaser of SharesUnits; provided, however, that the Company shall not be required to disclose any material nonpublic information to any purchaser of SharesUnits.
(dc) It The Company will file all reports required by Regulation D applicable law or registration with regard to sales of the Shares Units and use of the proceeds therefrom; provided that you provide all relevant information to the Company in writing as to purchasers of the Shares required for such filings.
(ed) It will The Company shall not offer offer, sell, contract to sell, pledge or sell other wise dispose of, directly or indirectly, or file any securities Securities Act registration statement with the Commission relating to any shares of Common Stock or common stock equivalents, or publicly disclose the intention to make any offer, sale, pledge, disposition or filing, without the prior written consent of the Company that are of the same or a similar class as the Shares Placement Agent for a period of six months after 90 days from the Closing Datedate of the Prospectus Supplement, other than those offers except issuances or sales the obligation to file a registration statement pursuant to existing contractual rights or obligations or issuances pursuant to the exercise of securities under an employee benefit plan as defined in Rule 405 under stock options or warrants outstanding on the Act, in connection with options, warrants, date of the Prospectus Supplement or pursuant to conversion or convertible securities notes outstanding as on the date of the Closing DateProspectus Supplement. Provided, or however, that in connection with an acquisition of assets or another business by the Company if such offering will be integrated with event that either (1) during the Offering last 17 days of the Shares pursuant to this Agreement for purposes of the exemptions under Regulation D, so as to invalidate the exemption from registration relied on to offer and sell the Shares.
(g) For a 90-day period of at least 18 months following the Closing Datedescribed herein, the Company release s earnings results or material news or a material event occurs relating to the Company, or (2) prior to the expiration of such 90-day period, the Company announces that it will maintain release earnings results during the registration of its Common Stock under Section 12 16-day period beginning on the last day of the Exchange Act so long as 90-day period, then, in either case, the Exchange Act requires it to 90 day period shall be so registeredextended until the expiration of the 18-day period beginning on the actual date of the release of the earnings results or the occurrence of the material new or event, will comply unless such extension is waived in all respects with its reporting and filing obligations under the Exchange Act, and will not take any action or file any document (whether or not permitted writing by the Exchange Act or the rules thereunder) to terminate or suspend such registration or to terminate or suspend its reporting and filing obligations under said Act unless required to do so by the Exchange ActPlacement Agent.
Appears in 1 contract
Covenants and Agreements of the Company. The Company covenants and --------------------------------------- agrees with you that:
(a) Except as contemplated or described in this Agreement or in a public disclosure made prior to the date hereof, it It will not, prior to the Closing Date, incur any material liability or obligation, direct or contingent, or enter into any material transaction, in each case, other than in the ordinary course of business. It will not, prior to the Closing Date, declare or pay any dividend on the Common Stock or make any distribution on the Common Stock payable to stockholders of record on a date prior to the Closing DateDate or declare or pay any bonuses to employees or increase any the compensation of any officers of the Company without your prior written consent except normal and customary bonuses and increases.
(b) It will cooperate with you to enable the Shares to be qualified for sale under the securities laws of such jurisdictions as you may designate, subject to approval by the Company, and at your request will make such applications and furnish such information as may be required of it for that purpose; provided, however, that you and the Company shall first determine whether an exemption from registration other than the Uniform Limited Offering Exemption (ULOE) or a similar exemption is available in each such jurisdiction and the Company shall not be required to qualify to do business or to file a general consent to service of process in any such jurisdiction or to subject itself to taxationjurisdiction. It will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualifications in effect for so long a period as you may reasonably request for the distribution of the Shares.
(c) It will make available to you and each purchaser of Shares at a reasonable time prior to the Closing Date the opportunity to ask questions and receive answers concerning the terms and conditions of the Offering and to obtain any additional information that the Company possesses or can acquire without unreasonable effort or expense that is necessary to verify the accuracy of any information in the Exchange Act Documents or otherwise furnished by the Company to you or any purchaser of Shares; provided, however, that the Company shall not be required to disclose any material nonpublic information to any purchaser of Shares.
(d) It will file all reports required by Regulation D with regard to sales of the Shares and use of the proceeds therefrom; provided that you provide all relevant information to the Company in writing as to purchasers of the Shares required for such filings.
(ed) It will not offer or sell any securities of the Company that are of the same or a similar class as the Shares for a period of six months after the Closing Date, other than those offers or sales of securities under an employee benefit plan as defined in Rule 405 under the Act, in connection with options, warrants, or convertible securities outstanding as of the Closing Date, Act or in connection with an acquisition of assets or another business by the Company if such offering will be integrated with the Offering offering of the Shares pursuant to this Agreement for purposes of the exemptions under Regulation D, so as to invalidate the exemption from registration relied on to offer and sell the Shares.
(g) For a period of at least 18 months following the Closing Date, the Company will maintain the registration of its Common Stock under Section 12 of the Exchange Act so long as the Exchange Act requires it to be so registered, will comply in all respects with its reporting and filing obligations under the Exchange Act, and will not take any action or file any document (whether or not permitted by the Exchange Act or the rules thereunder) to terminate or suspend such registration or to terminate or suspend its reporting and filing obligations under said Act unless required to do so by the Exchange Act.
Appears in 1 contract
Samples: Placement Agent Agreement (Turbochef Technologies Inc)
Covenants and Agreements of the Company. The Company covenants and agrees with you that:
(a) Except as contemplated or described in this Agreement or in a public disclosure made prior to Neither the date hereof, it will notCompany nor any of its Subsidiaries will, prior to the Closing Date, Date incur any material liability or obligation, direct or contingent, or enter into any material transaction, in each case, other than in the ordinary course of business, except as contemplated by the Memorandum. It The Company will not, prior to the Closing Date, not declare or pay any dividend on the Common Stock or make any distribution on the Common Stock payable to stockholders shareholders of record on a date prior to the Closing Date.
(b) The Company will use the net proceeds received by it from the sale of the Common Stock in the manner specified in the Memorandum under the caption "Use of Proceeds."
(c) If at any time after the date of the Memorandum and prior to the Termination Date, any event relating to or affecting the Company occurs as a result of which the Memorandum would include an untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Company will promptly notify you thereof and will prepare an amended or supplemented offering memorandum which will correct such statement or omission. For purposes of this para graph (a), the Company will furnish such information with respect to itself as you may from time to time reasonably request.
(d) It will deliver to you, at or before the date hereof, an original of the Memorandum suitable for duplication by you, including such financial statements. It will deliver to you, from time to time until the Termination Date, an original of such amendments or supplements to the Memorandum that may be prepared by the Company suitable for duplication by you.
(e) It will cooperate with you to enable the Shares Common Stock to be qualified for sale under the securities laws of such jurisdictions as you may designate, subject to approval by the Company, and at your request will make such applications and furnish such information as may be required of it for that purpose; provided, however, that you and the Company shall first determine whether an exemption from registration other than the Uniform Limited Offering Exemption (ULOE) or a similar exemption is available in each such jurisdiction and the Company it shall not be required to qualify to do business or to file a general consent to service of process in any such jurisdiction or to subject itself to taxationjurisdiction. It will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualifications in effect for so long a period as you may reasonably request for the distribution of the SharesCommon Stock.
(c) It will make available to you and each purchaser of Shares at a reasonable time prior to the Closing Date the opportunity to ask questions and receive answers concerning the terms and conditions of the Offering and to obtain any additional information that the Company possesses or can acquire without unreasonable effort or expense that is necessary to verify the accuracy of any information in the Exchange Act Documents or otherwise furnished by the Company to you or any purchaser of Shares; provided, however, that the Company shall not be required to disclose any material nonpublic information to any purchaser of Shares.
(df) It will file all reports required by Regulation D with regard to sales of the Shares Common Stock and use of the proceeds therefrom; provided that you provide all relevant information to the Company in writing as to purchasers of the Shares Common Stock required for such filings.
(eg) It For a period of three years from the Closing Date, the Company will deliver to you (i) copies of the financial statements furnished by the Company to stockholders and each other report furnished by the Company to stockholders, (ii) as soon as they are available, copies of any other reports (financial or other) which the Company shall publish or otherwise make generally available to the Company's security holders as such and (iii) as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission.
(h) The Company agrees to nominate for election as a director of the Company one individual designated by you for so long as purchasers of the Common Stock offered and sold pursuant to Section 4(a) of this Agreement retain, in the aggregate, at least 50% of the aggregate number of shares of Common Stock offered and sold pursuant to Section 4(a).
(i) The Company will not offer or sell any securities of the Company that are of the same or a similar class as the Shares Common Stock offered and sold pursuant to this Agreement for a period of six months after the Closing Date, other than those offers or sales of securities under an employee benefit plan as defined in Rule 405 under the 1933 Act, in connection with options, warrants, or convertible securities outstanding as of unless the Closing Date, or in connection Company provides you with an acquisition opinion of assets counsel acceptable to you that any such offer or another business by the Company if such offering sale will not be integrated with the Offering offering of the Shares Common Stock pursuant to this Agreement for purposes of the exemptions under Regulation DD and the condition contained in Rule 502(a) of Regulation D.
(j) The Company will cause each of Donald R. Head, so as Andrew A. Jxxxx, Xxxo F. Lamx, xxx Xxxx X. Xilxxx xx xxxxxer to invalidate xxx xx xx xxxxre the exemption from registration relied on Closing Date an agreement satisfactory in form and substance to you, whereby each agrees, for a period of one year after the Closing Date, not to sell, offer or otherwise dispose of any shares of Common Stock without your prior written consent ("Lock-Up Letters"); provided, however, that Messrs Head, Johns, and Lamb may sell up tx xxxe percent of the Sharesshares of Common Stock that they currently own and Mr. Miller may sell up to 25% xx xxx xxares that he currently owns without your consent. In addition, during the lock-up period, Messrs. Head, Johns, Lamb, and Miller may sell their sharxx xx a pro rata basis with other selling shareholders, if any, in any underwritten public offering, subject to the discretion of the underwriters in any such offering to limit the shares of selling shareholders that may be sold in such offering.
(gk) For a period The Company agrees that, until the Company has successfully completed an underwritten public offering of Common Stock pursuant to which the Company realizes proceeds of at least 18 $12,000,000 and the price to the public is at least $5.00 per share (a "Qualified Offering"), the number of shares of the Common Stock collectively issued or issuable by the Company as incentive compensation, directly or pursuant to the grant and exercise of options or warrants, to its employees (both full and part-time), directors, consultants, agents (excluding you), or any others persons under any plan, agreement, or otherwise will not, in the aggregate, exceed 2,770,000 without your written consent. In addition, the issuance of such shares, options, or warrants will be subject to the following limitations: (i) no more than 30,000 shares shall be issued to employees of each new branch office opened in Arizona subsequent to the Closing Date, (ii) no more than 150,000 shares shall be issued to employees located in each new county in California in which the Company opens an office subsequent to the Closing Date (provided that the relocation of an existing office shall not be considered the opening of a new office), and (iii) no more than 50,000 shares shall be issued for any other purpose. The Company agrees that no shares issued pursuant to this paragraph (k) will be issued or issuable at a per share price less than the greater of $2.50 or Current Market Value except for up to 150,000 shares to be issued in connection with the Company's proposed expansion into San Diego County, California which may be issued at a price of not less than $2.00.
(l) The Company hereby grants you a right of first refusal to act as, at least, co-manager on the next succeeding offering by the Company of its securities commenced within the 24 months following the Closing Date. The foregoing right of first refusal shall not apply if, in the reasonable judgment of counsel for the lead underwriter selected by the Company, your inclusion as an underwriter would cause the offering to violate applicable rules and regulations of federal or state governmental agencies, including the Corporate Financing Rules of the National Association of Securities Dealers, Inc. Notwithstanding the foregoing, the Company will maintain shall not be required to employ any specific underwriter that you suggest that is not acceptable to the registration Company nor shall you be required to co-manage any offering with an underwriter suggested by the Company that is not acceptable to you.
(m) The Company hereby also grants to the purchasers of its the Common Stock under offered pursuant to Section 12 4(a) hereof (individually a "Purchaser" and , collectively, the "Purchasers") a pre-emptive right to purchase any and all additional shares of Common Stock, or securities convertible into or containing an option or warrant to purchase Common Stock ("Derivative Securities"), as may hereafter be issued from time to time by the Company (including shares of Common Stock or Derivative Securities offered, sold, or granted to officers and employees of the Exchange Act so long as Company) if such shares are offered and/or sold for a purchase price or such Derivative Securities have a conversion or exercise price that is less than the Exchange Act requires it lesser of (i) $1.35 per share or (ii) the Current Market Price of the Common Stock. Such pre-emptive rights shall exist with respect to shares of Common Stock originally authorized, shares hereafter authorized, or treasury shares, but shall not exist with respect to: (a) shares of Common Stock issued by the Company in a firm commitment underwritten offering, (b) shares of Common Stock issued by the Company upon the exercise or conversion of currently outstanding Derivative Securities, or (c) shares of Common Stock issued by the Company upon the exercise of stock options permitted under paragraph (k) above. Each Purchaser shall be so registeredentitled to purchase the number of shares of Common Stock equal to the number of shares of Common Stock offered by the Company multiplied by a fraction the numerator of which is the number of shares of Common Stock owned by the Purchaser and the denominator of which is 3,703,703. The Board of Directors of the Company shall establish the price, will comply in all respects with its reporting and filing obligations under the Exchange Actterms, and will not take any action or file any document (whether or not permitted conditions on which such pre-emptive rights may be exercised on an equitable basis. Adjustments may be made in the number of shares offered to each holder in order to eliminate fractional shares. The time of expiration of pre-emptive rights may be established by the Exchange Act Board of Directors but each holder shall have a minimum of 45 days in which to consider exercising his or her pre-emptive right. The foregoing pre-emptive right shall terminate on the rules thereunder) to terminate or suspend such registration or to terminate or suspend its reporting and filing obligations under said Act unless required to do so by date that the Exchange ActCompany successfully completes a Qualified Offering.
Appears in 1 contract
Samples: Placement Agent Agreement (Capital Title Group Inc)
Covenants and Agreements of the Company. The Company covenants and agrees with you that:
(a) Except as contemplated or described in this Agreement Agreement, the Memorandum or in a public disclosure made prior to the date hereof, it will not, prior to the initial Closing Date, incur any material liability or obligation, direct or contingent, or enter into any material transaction, in each case, other than in the ordinary course of business. It Except as described in the Memorandum, it will not, prior to the initial Closing Date, declare or pay any dividend on the Common Stock or make any distribution on the Common Stock payable to stockholders shareholders of record on a date prior to the initial Closing Date.
(b) If at any time after the date of the Memorandum and prior to the Termination Date, any event relating to or affecting the Company occurs as a result of which the Memorandum would include an untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, it will promptly notify you thereof and will prepare an amended or supplemented offering memorandum which will correct such statement or omission.
(c) It will cooperate with you to enable the Shares Units to be qualified for sale under the securities laws of such jurisdictions as you may designate, subject to approval by the Company, and at your request will make such applications and furnish such information as may be required of it for that purpose; provided, however, that you and the Company shall first determine whether an exemption from registration other than the Uniform Limited Offering Exemption (the "ULOE") or a similar exemption is available in each such jurisdiction jurisdiction, and the Company shall not be required to qualify to do business or to file a general consent to service of process in any such jurisdiction or to subject itself to taxation. It will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualifications in effect for so long a period as you may reasonably request for the distribution of the SharesUnits.
(cd) It will make available to you and each purchaser of Shares Units at a reasonable time prior to the each Closing Date the opportunity to ask questions and receive answers concerning the terms and conditions of the Offering and to obtain any additional information that the Company possesses or can acquire without unreasonable effort or expense that is necessary to verify the accuracy of any information in the Exchange Act Canadian Documents or otherwise furnished by the Company to you or any purchaser of SharesUnits; provided, however, that the Company shall not be required to disclose any material nonpublic information to any purchaser of SharesUnits.
(de) It will file all reports required by Regulation D with regard to sales of the Shares and use of the proceeds therefrom; provided that you provide all relevant information to the Company in writing as to purchasers of the Shares required for such filings.
(ef) It will not offer or sell any securities of the Company that are of the same or a similar class as the Shares Offered Securities for a period of six months after the final Closing Date, other than those offers or sales of securities under an employee benefit plan as defined in Rule 405 under the Act, in connection with options, warrants, or convertible securities outstanding as of the Closing Date, or in connection with an acquisition of assets or another business by the Company if such offering will be integrated with the Offering of the Shares Units pursuant to this Agreement for purposes of the exemptions under Regulation D, so as to invalidate the exemption from registration relied on to offer and sell the SharesUnits.
(g) For a period of at least 18 months following the Closing DateSubject to subparagraph (h) below, the Company it will maintain the registration of its Common Stock under Section 12 of with the Exchange Act BCSC for at least two years from the final Closing Date, and thereafter so long as the Exchange Act requires it to be Canadian Law so registeredrequires, and will comply in all respects with its reporting and filing obligations thereunder.
(h) It will use its best efforts to list its Common Stock for quotation on the OTC Bulletin Board (or the NASDAQ Small Cap Market) within six months from the Closing Date. The Company shall de-list its Common Stock from the TSX-V immediately after the NASD approves the initiation of quotations for the Common Stock on the OTC Bulletin Board (or the NASDAQ Small Cap Market), and shall file with the Commission (and NASDAQ Stock Market) all reports and notices required to be so filed, consistent with the Company's obligations under the Exchange ActRegistration Rights Agreement.
(i) For a period of at least two-years following the final Closing Date, it will use its commercially reasonable best efforts (i) to prepare and make publicly available in accordance with Rule 144(c) such information as is required for the purchasers to sell the Shares under Rule 144, and (ii) to take such further action as may be necessary to enable the purchasers to sell Shares without registration under the Securities Act within the limitation of the exemptions provided by Rule 144, including causing its attorneys to issue and deliver any appropriate legal opinion required to permit a purchaser to sell Shares under Rule 144 upon receipt of appropriate documentation relating to such sale.
(j) It will not take any action or file any document use the net proceeds received by it from the sale of the Units in the manner specified in the Memorandum under the caption "Use of Proceeds."
(whether or not permitted k) For a period of two years from the Closing Date, it will deliver to you (i) copies of the financial statements furnished by the Exchange Act Company to shareholders and each other report furnished by the Company to shareholders, (ii) as soon as they are available, copies of any other reports (financial or other) which the Company shall publish or otherwise make generally available to the Company's security holders as such, and (iii) as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission, promptly upon transmission thereof; copies of all financial statements and reports sent by the Company to its shareholders and of all regular and periodic reports, if any, filed by it with the Commission or pursuant to any statute administered by the Commission.
(l) Your rights under the Financial Advisory Agreement shall survive any Closing under, or the rules thereunder) to terminate or suspend such registration or to terminate or suspend its reporting and filing obligations under said Act unless required to do so by the Exchange ActTermination of, this Agreement.
Appears in 1 contract
