Covenants of the Company With Respect to Registration. The Company covenants and agrees as follows: (a) In connection with any registration under Section 7.4 hereof, the Company shall file the Registration Statement as expeditiously as possible, but in any event no later than thirty (30) business days following receipt of any demand therefor, shall use its best efforts to have any such Registration Statement declared effective at the earliest possible time, and shall furnish each holder of Registrable Securities such number of prospectuses as shall reasonably be requested. (b) The Company shall pay all costs, fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements filed pursuant to Sections 7.3. and 7.4.(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. (c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities included in the Registration Statement for offering and sale under the securities or blue sky laws of such states as are reasonably requested by the holders of such securities, provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction. (d) The Company shall indemnify any holder of the Registrable Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement. (e) Any holder of Registrable Securities to be sold pursuant to a Registration Statement, and such Holder's successors and assigns, shall severally, and not jointly, indemnify, the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such Holder, or such Holder's successors or assigns, for specific inclusion in such Registration Statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement. (f) Nothing contained in this Agreement shall be construed as requiring any Holder to exercise the Warrants held by such Holder prior to the initial filing of any Registration Statement or the effectiveness thereof. (g) The Company shall promptly deliver copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.
Appears in 2 contracts
Samples: Warrant Agreement (Interactive Magic Inc /Md/), Warrant Agreement (Interactive Magic Inc /Md/)
Covenants of the Company With Respect to Registration. The In connection with any registration under Section 9.2 or 9.3 hereof, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than thirty a registration statement within ninety (3090) business days following of receipt of any demand therefor, shall use its best efforts and to have any such Registration Statement registration statements declared effective at the earliest possible time, and shall furnish each holder of Registrable Securities Holder desiring to sell Warrant Shares such number of prospectuses as shall reasonably be requested. The Company shall also file such applications and other documents as may be necessary to permit the sale of the Warrant Shares to the public during the Registration Period in those states to which the Company and the holders of the Warrants and/or Warrant Shares shall mutually agree.
(b) The Company shall pay all costscosts (excluding fees and expenses of Holder(s)' counsel and any underwriting or selling commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. 9.2 and 7.4.(a9.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. The Holder(s) will pay all costs, fees and expenses in connection with the registration statement filed pursuant to Section 9.3(c).
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Warrant Shares included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder the Holder(s) of the Registrable Securities Warrant Shares to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holder(s) within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth in Section 7 of the Underwriting Agreement and statement.
(e) In order to provide for just and equitable contribution as set forth under the Act in Section 8 any case in which (i) any Holder of the Underwriting Warrant Shares or controlling person thereof makes a claim for indemnification but it is judicially determined (by the entry of a final judgment or decree by a court of competent jurisdiction and the expiration of time to appeal or the denial of the last right of appeal) that such indemnification may not be enforced in such case notwithstanding the fact that the express provisions of Section 9.4(d) hereof provide for indemnification in such case or (ii) contribution under the Act may be required on the part of any Holder of the Warrant Shares, or controlling person thereof, then the Company, any such Holder of the Warrant Shares, or controlling person thereof shall contribute to the aggregate losses, claims, damages or liabilities to which they may be subject (which shall, for all purposes of this Agreement, include, but not be limited to, all costs of defense and investigation and all attorneys fees), in either such case (after contribution from others) on the basis of relative fault as well as any other relevant equitable considerations. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or a Holder of Warrant Shares, or controlling person thereof on the other and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and such Holders of such securities and such controlling persons agree that it would not be just and equitable if contribution pursuant to this Section 9.4(e) were determined by pro rata allocation or by any other method which does not take account of the equitable considerations referred to in this Section 9.4(e). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 9.4(e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(ef) Any holder The Holder(s) of Registrable Securities the Warrant Shares to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all any loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished in writing, by or on behalf of such HolderHolders, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreementregistration statement.
(fg) Nothing contained in this Agreement shall be construed as requiring any Holder the Holder(s) to exercise the their Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(gh) The Company shall promptly deliver copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement furnish to each Holder of Registrable Securities included for registration participating in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda the offering and to the managing each underwriter, if any, a signed counterpart, addressed to such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the offering closing under the underwriting agreement), and (ii) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a "cold comfort" letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in connection such registration statement, in each case covering substantially the same matters with which respect to such Holder's Registrable Securities are being registered registration statement (and shall permit each the prospectus included therein) and, in the case of such Holder and managing underwriter to do such investigation, upon reasonable advance noticeaccountants' letter, with respect to information events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(j) The Company shall enter into an underwriting agreement with the managing underwriters selected for such underwriting by Holders holding a Majority of the Warrant Shares requested to be included in such underwriting. Such agreement shall be satisfactory in form and substance to the Company, each Holder and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holder(s) shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Shares and may, at their option, require that any or omitted from the Registration Statement as it deems reasonably necessary to comply with applicable securities laws or rules all of the National Association of Securities Dealersrepresentations, Inc. Such investigation shall include access to books, records warranties and properties and opportunities to discuss the business covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holder(s). Such Holder(s) shall not be required to make any representations or warranties to or agreements with its officers and independent auditors, all the Company or the underwriters except as they may relate to such reasonable extent Holder(s) and at such reasonable times and as often as any such Holder their intended methods of distribution.
(k) For purposes of this Agreement, the term "Majority" in reference to the Warrants or managing underwriter Warrant Shares, shall reasonably requestmean in excess of fifty percent (50%) of the then outstanding Warrants or Warrant Shares that (i) are not held by the Company, or (ii) have not been resold to the public pursuant to a registration statement filed with the Commission under the Act or Rule 144 promulgated under the Act, or similar exemption.
Appears in 2 contracts
Samples: Warrant Agreement (Ceco Environmental Corp), Warrant Agreement (Ceco Environmental Corp)
Covenants of the Company With Respect to Registration. The In connection with any registrations under Sections 7(b) and 7(c) hereof, the Company covenants and agrees as follows:
(a1) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than a registration statement within thirty (30) business calendar days following of receipt of any demand therefortherefor pursuant to Section 7(b); provided, however, that the Company shall not be required to produce audited or unaudited financial statements for any period prior to the date such financial statements are required to be filed in a report on Form 10-K or Form 10-Q, as the case may be. The Company shall use its best efforts to have any such Registration Statement registration statement declared effective at the earliest possible time, and shall furnish each holder of Registrable Holder desiring to sell Underwriter's Securities such number of prospectuses as shall reasonably be requested.
(b2) The Company shall pay all costscosts (excluding fees and expenses of Holders' counsel and any underwriting discounts or selling fees, expenses or commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements any registration statement filed pursuant to Sections 7.3. 7(b) and 7.4.(a7(c) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses.
(c3) The Company will take all necessary action which may be required in qualifying use its best efforts to qualify or registering register the Registrable Underwriter's Securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolders, provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d4) The Company shall indemnify any holder the Holders of the Registrable Underwriter's Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended 1934 (the "Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement statement, but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth Underwriter contained in Section 8 of the Underwriting Agreement.
(e5) Any holder The Holders of Registrable the Underwriter's Securities to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such HolderHolders, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement registration statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth contained in Section 8 of the Underwriting AgreementAgreement pursuant to which the Underwriter has agreed to indemnify the Company.
(f6) Nothing contained in this Agreement shall be construed as requiring any Holder the Holders to exercise the their Underwriter's Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof, provided that such Holders have made arrangements reasonably satisfactory to the Company to pay the exercise price from the proceeds of such offering.
(g7) The Company shall furnish to each underwriter for the offering, if any, such documents as such underwriter may reasonably require.
(8) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(9) The Company shall deliver promptly deliver to each Holder participating in the offering requesting the correspondence described below and any managing underwriter copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to registration statement and permit each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"). Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.
(10) The Company shall enter into an underwriting agreement with the managing underwriter selected for such underwriting by Holders holding a Majority of the Underwriter's Securities requested to be included in such underwriting, provided, however that such managing underwriter shall be reasonably acceptable to the Company, except that in connection with an offering for which the Holders have piggyback rights, the Company shall have the sole right to select the managing underwriter or underwriters. Such underwriting agreement shall be satisfactory in form and substance to the Company, a Majority of such Holders (in respect of a registration under Section 7(b) only) and such managing underwriter, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Underwriter's Securities. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders and their intended methods of distribution.
Appears in 2 contracts
Samples: Underwriter's Warrant Agreement (Room Plus Inc), Underwriter's Warrant Agreement (Room Plus Inc)
Covenants of the Company With Respect to Registration. The In connection with any registration under Section 8 or 9 hereof, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than a registration statement within thirty (30) business days following of receipt of any demand therefor, shall use its best efforts to have any such Registration Statement registration statement declared effective at the earliest possible time, and shall furnish each holder of Registrable Holder desiring to sell Warrant Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costscosts (excluding fees and expenses of Holder(s)' counsel and any underwriting or selling commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. 8 and 7.4.(a) 9 hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 10(a), the Company shall, in addition to any other equitable or other relief available to the Holder(s), extend the Exercise Period by such number of days as shall equal the delay caused by the Company's failure.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as are reasonably requested by the holders of such securitiesHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder the Holder(s) of the Registrable Warrant Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), from and against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth Underwriter contained in Section 7 of the Underwriting Agreement and relating to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreementoffering.
(e) Any holder The Holder(s) of Registrable the Warrant Securities to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such HolderHolders, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement registration statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth contained in Section 7 of the Underwriting Agreement and pursuant to provide for just and equitable contribution as set forth in Section 8 of which the Underwriting AgreementUnderwriter has agreed to indemnify the Company.
(f) Nothing contained in this Agreement shall be construed as requiring any Holder to The Holder(s) may exercise the their Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(g) The Company shall not permit the inclusion of any securities other than the Warrant Securities to be included in any registration statement filed pursuant to Section 9 hereof, or permit any other registration statement to be or remain effective during the effectiveness of a registration statement filed pursuant to Section 9 hereof, other than a secondary offering of equity securities of the Company, without the prior written consent of the Holders of the Warrants and Warrant Securities representing a Majority of such securities
(h) The Company shall furnish to each Holder participating in the offering and to each underwriter, if any, a signed counterpart, addressed to such Holder or underwriter, of (x) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (y) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(j) The Company shall deliver promptly deliver to each Holder participating in the offering requesting the correspondence and memoranda described below and to the managing underwriters, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to registration statement and permit each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD") or an Exchange. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.
(k) The Company shall enter into an underwriting agreement with the managing underwriters, which may be the Underwriter. Such agreement shall be satisfactory in form and substance to the Company, and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter; provided however, that no Holder shall be required to make any representations, warranties or covenants or grant any indemnity to which it shall object in any such underwriting agreement. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Securities and may, at their option, require that any or all the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders and their intended methods of distribution.
(l) For purposes of this Agreement, the term "Majority" in reference to the Holders of Warrants or Warrant Securities, shall mean in excess of fifty (50%) of the then outstanding Warrants and Warrant Securities that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith or (ii) have not been resold to the public pursuant to a registration statement filed with the Commission under the Act.
Appears in 2 contracts
Samples: Warrant Agreement (Genetic Vectors Inc), Warrant Agreement (Genetic Vectors Inc)
Covenants of the Company With Respect to Registration. The In connection with any registrations under Sections 7(b) and 7(c) hereof, the Company covenants and agrees as follows:
(a1) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than thirty a registration statement within forty-five (3045) business days following of receipt of any demand therefor; provided, however, that the Company shall not be required to produce audited or unaudited financial statements for any period prior to the date such financial statements are required to be filed in a report on Form 10-K or Form 10-Q (or Form 10-KSB or Form 10-QSB), as the case may be. The Company shall use its best efforts to have any such Registration Statement registration statements declared effective at the earliest possible time, and shall furnish each holder of Registrable Securities Holder desiring to sell Shares such number of prospectuses as shall reasonably be requested.
(b2) The Company shall pay all costscosts (excluding fees and expenses of Holder(s)' counsel and any underwriting discounts or selling fees, expenses or commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements any registration statement filed pursuant to Sections 7.3. 7(b) and 7.4.(a7(c) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7(d) (1), the Company shall, in addition to any other equitable or other relief available to the Holder(s), be liable for any or all incidental, special and consequential damages and damages due to loss of profit sustained by the Holder(s) requesting registration of their Warrant Shares.
(c3) The Company will take all necessary action which may be required in qualifying to qualify or registering register the Registrable Securities Warrant Shares included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d4) The Company shall indemnify any holder the Holder(s) of the Registrable Securities Warrant Shares to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the 1933 Act or Section 20(a) of the Securities Exchange Act of 1934, as amended 1934 (the "Exchange Act"), against all losslosses, claimclaims, damagedamages, expense expenses or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the 1933 Act, the Exchange Act or otherwise, arising from such registration statement statement, but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth contained in Section 7 6 of the Underwriting Agreement Agreement, and the Holder(s) shall indemnify the Company to provide for just the same extent and equitable contribution with the same effect as set forth the provisions pursuant to which the Underwriters have agreed to indemnify the Company contained in Section 8 6 of the Underwriting Agreement.
(e5) Any holder The Holder(s) of Registrable Securities the Warrant Shares to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each personpersons, if any, who controls the Company within the meaning of Section 15 of the 1933 Act or Section 20(a) of the Exchange Act, against all losslosses, claimclaims, damage or expense damages, expenses or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the 1933 Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such HolderHolders, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement registration statement to the same extent and with the same effect as the provisions contained in Section 6 of the Underwriting Agreement pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting AgreementCompany.
(f6) Nothing contained in this Agreement shall be construed as requiring any Holder the Holder(s) to exercise the their Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(g7) If the manner of distribution proposed by the holders of the Warrants and the Warrant Shares is an underwriting, the Company shall furnish to each Holder participating in the offering and to each underwriter, a signed counterpart, addressed to such Holder or underwriter of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(8) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within the first full four fiscal quarters following the effective date, make "generally available to its security holders" (within the meaning of Rule 158 under the 0000 Xxx) an earnings statement (which need not be audited) complying with Section 11(a) of the 0000 Xxx.
(9) The Company shall deliver promptly deliver to each Holder participating in the offering requesting the correspondence described below and any managing underwriter, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to registration statement and permit each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"). Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.
(10) In connection with an offering for which the Holders have demand rights, the Company shall enter into an underwriting agreement with the managing underwriter selected for such underwriting by Holders holding a Majority of the Shares requested to be included in such underwriting. In connection with an offering for which the Holders have piggyback rights, the Company shall have the sole right to select the managing underwriter. Such underwriting agreement shall be satisfactory in form and substance to the Company, a Majority of such Holders and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Shares and may, at their option, require that any or all the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders their ownership and their intended methods of distribution.
Appears in 2 contracts
Samples: Underwriters' Warrant Agreement (Stratus Services Group Inc), Underwriters' Warrant Agreement (Stratus Services Group Inc)
Covenants of the Company With Respect to Registration. The In connection with any registration under Section 7.2 or 7.3 hereof, the Company covenants and agrees as follows:
(a) In The Company shall use its best efforts to file a registration statement within 45 days of receipt of any demand therefor in connection with any registration under Section 7.4 hereof, the Company shall file the Registration Statement as expeditiously as possible, but in any event no later than thirty (30) business days following receipt of any demand therefor7.3, shall use its best efforts to have any such Registration Statement registration statements declared effective at the earliest possible time, and shall furnish each holder of Registrable Holder desiring to sell Warrant Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costscosts (excluding fees and expenses of Holder(s)' counsel and any underwriting or selling commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. 7.2 and 7.4.(a7.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, expenses and blue sky fees and expenses. The Holder(s) shall pay all costs, fees and expenses in connection with any registration statement filed pursuant to Section 7.3(c) hereof. If the Company shall fail to comply with its obligations under Section 7.4(a), the Holder(s) shall be entitled to seek equitable or other relief available to the Holder(s).
(c) The Company will shall take all necessary action which that may be required in qualifying or registering the Registrable Warrant Securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder and hold harmless the Holder(s) of the Registrable Warrant Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holder(s) within the meaning of Section 15 of the Securities Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), from and against any and all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoeverwhatsoever including, without limitation, the fees and expenses of legal counsel) to which any of them may become subject under the Securities Act, the Exchange Act or otherwise, arising from such registration statement statement, but only to the same extent and with the same effect as the provisions contained in Section 7(a) of the Underwriting Agreement pursuant to which the Company has agreed to indemnify the Underwriters as set forth in Section 7 each of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting AgreementUnderwriters.
(e) Any holder The Holder(s) of Registrable the Warrant Securities to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, Company and its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange Act, from and against any and all loss, claim, damage or damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoeverwhatsoever including, without limitation, the fees and expenses of legal counsel) to which they may become subject under the Securities Act, the Exchange Act or otherwise, arising from information furnished in writing by or on behalf of such Holder, Holders or such Holder's their successors or assigns, specifically for specific inclusion in such Registration Statement registration statement, but only to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth contained in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 7(b) of the Underwriting Agreement.
(f) Nothing contained in this Agreement shall be construed as requiring any Holder the Holder(s) to exercise the their Representatives' Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(g) The Company shall not permit the inclusion of any securities other than the Warrant Securities to be included in any registration statement filed pursuant to Section 7.3 hereof or permit any other registration statement to be or remain effective during the effectiveness of the registration statement filed pursuant to Section 7.3 hereof without the prior written consent of the Holders of the Representatives' Warrants and the other Warrant Securities representing a Majority of such securities.
(h) The Company shall cause to be furnished to each Holder participating in the offering and to each underwriter, if any, a signed counterpart, addressed to such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (or if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Securities Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Securities Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(j) The Company shall deliver promptly deliver to each Holder participating in the offering requesting the correspondence and memoranda described below and to the managing underwriters, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to registration statement and permit each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or the rules and regulations of the National Association of Securities Dealers, Inc. ("NASD"). Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.
(k) With respect to a registration under Section 7.3 hereto the Company shall enter into an underwriting agreement with the underwriters selected for such underwriting by the Holders of a Majority of the Warrant Securities requesting such registration, which may be the Representatives. Such agreement shall be reasonably satisfactory in form and substance to the Company, each Holder and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms and conditions as are customarily contained in agreements of the type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Securities and may, at their option, require that any or all the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders and their intended methods of distribution.
(l) In addition to the Warrant Securities, upon the written request therefor by any Holder(s), the Company shall include in the registration statement any other securities of the Company held by such Holder(s) or issuable upon conversion or exercise or in exchange for securities held by such Holder(s) as of the date of filing of such registration statement.
(m) For purposes of this Agreement, the term "Majority" or "66-2/3%" in reference to the Holders of Representatives' Warrants and/or other Warrant Securities, shall mean in excess of 50%, in the former case, and 66-2/3%, in the latter case, of the shares of Common Stock issued or issuable upon exercise of all then outstanding Representatives' Warrants and/or Warrant Securities (assuming the exercise of all of the Representatives' Warrants) that (i) are not held by the Company, an affiliate, officer, creditor, employee, or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith, and (ii) have not been resold to the public.
Appears in 1 contract
Samples: Representative's Warrant Agreement (Apollo Biopharmaceutics Inc)
Covenants of the Company With Respect to Registration. The In connection with any registrations under Sections 7(b) and 7(c) hereof, the Company covenants and agrees as follows:
(a1) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than a registration statement within thirty (30) business calendar days following of receipt of any demand therefortherefor pursuant to Section 7(b); provided, however, that the Company shall not be required to produce audited or unaudited financial statements for any period prior to the date such financial statements are required to be filed in a report on Form 10-KSB or Form 10-QSB, as the case may be. The Company shall use its best efforts to have any such Registration Statement registration statement declared effective at the earliest possible time, and shall furnish each holder of Registrable Holder desiring to sell Underwriters' Securities such number of prospectuses as shall reasonably be requested.
(b2) The Company shall pay all costscosts (excluding fees and expenses of Holders' counsel and any underwriting discounts or selling fees, expenses or commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements any registration statement filed pursuant to Sections 7.3. 7(b) and 7.4.(a7(c) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses.
(c3) The Company will take all necessary action which may be required in qualifying use its best efforts to qualify or registering register the Registrable Underwriters' Securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolders, provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d4) The Company shall indemnify any holder the Holders of the Registrable Underwriters' Warrant and/or the Underwriters' Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement statement, but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth Underwriter contained in Section 8 of the Underwriting Agreement.
(e5) Any holder The Holders of Registrable the Underwriters' Warrant and/or the Underwriters' Securities to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such HolderHolders, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement registration statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth contained in Section 8 of the Underwriting AgreementAgreement pursuant to which the Underwriter has agreed to indemnify the Company.
(f6) Nothing contained in this Agreement shall be construed as requiring any Holder the Holders to exercise the Warrants held by such Holder their Underwriters' Warrant prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(g7) The Company shall furnish to each Underwriter for the offering, if any, such documents as such Underwriter may reasonably require.
(8) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(9) The Company shall deliver promptly deliver to each Holder participating in the offering requesting the correspondence described below and any managing Underwriter copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to registration statement and permit each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter Underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"). Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.
(10) The Company shall enter into an underwriting agreement with the managing underwriter selected for such underwriting by Holders holding a Majority in interest of the then outstanding Underwriters' Warrant, or the Majority in interest of the Underwriters' Securities (assuming the exercise of all of the Underwriters' Warrant), requested to be included in such underwriting, provided, however that any managing underwriter shall be reasonably acceptable to the Company, except that in connection with a public offering for which the Holders have piggyback rights, the Company shall have the sole right to select the managing underwriter or underwriters. Such underwriting agreement shall be satisfactory in form and substance to the Company, a Majority of such Holders (in respect of a registration under Section 7(b) only), as the case may be, and such managing underwriter, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Underwriters' Warrant and/or Underwriters' Securities. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders and their intended methods of distribution.
Appears in 1 contract
Samples: Underwriters' Warrant Agreement (Amedore Homes Inc)
Covenants of the Company With Respect to Registration. The In connection with any registrations under Sections 7(b) and 7(c) hereof, the Company covenants and agrees as follows:
(a1) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than thirty a registration statement within forty-five (3045) business calendar days following of receipt of any demand therefortherefor pursuant to Section 7(b); provided, however, that the Company shall not be required to produce audited or unaudited financial statements for any period prior to the date such financial statements are required to be filed in a report on Form 10-KSB or Form 10-QSB, as the case may be. The Company shall use its best efforts to have any such Registration Statement registration statement declared effective at the earliest possible time, and shall furnish each holder of Registrable Holder desiring to sell Underwriters' Securities such number of prospectuses as shall reasonably be requested.
(b2) The Company shall pay all costscosts (excluding fees and expenses of Holders' counsel and any underwriting discounts or selling fees, expenses or commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements the first registration statement filed pursuant to Sections 7.3. 7(b) and 7.4.(a7(c) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses.
(c3) The Company will take all necessary action which may be required in qualifying use its best efforts to qualify or registering register the Registrable Underwriters' Securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolders, provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d4) The Company shall indemnify any holder the Holders of the Registrable Underwriters' Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement statement, but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth contained in Section 8 of the Underwriting Agreement.
(e5) Any holder The Holders of Registrable the Underwriters' Securities to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such HolderHolders, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement registration statement to the same extent and with the same effect as the provisions contained in Section 8 of the Underwriting Agreement pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting AgreementCompany.
(f6) Nothing contained in this Agreement shall be construed as requiring any Holder the Holders to exercise the their Underwriters' Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(g7) The Company shall not be entitled to include any securities other than the Under-writers' Securities in any registration statement filed pursuant to Section 7(b) hereof without the prior written consent, which consent shall not be unreasonably withheld, of the Holders of the Underwriters' Warrants and Underwriters' Securities representing a Majority of such securities (assuming exercise of all of the Underwriters' Warrants).
(8) The Company shall furnish to a designated representative of the Holders participating in the offering and to each underwriter, if any, a signed counterpart, addressed to the Company or the underwriter of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) if such registration includes an underwritten public offering a copy of the "cold comfort" letter dated the effective date of such registration statement signed by each independent public accountant who has issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letters. with respect to events subsequent to the date of such financial statements, as are duly covered in opinions of issuer's counsel and in accountants' letters, with respect to customary events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(9) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 1 (a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(10) The Company shall deliver promptly deliver to each Holder participating in the offering requesting the correspondence described below and any managing underwriter copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to registration statement and permit each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"). Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.
(11) The Company shall enter into an underwriting agreement with the managing underwriter selected for such underwriting by Holders holding a Majority of the Underwriters' Securities requested to be included in such underwriting, provided, however that (i) such managing underwriter shall be reasonably acceptable to the Company, except that in connection with an offering for which the Holders have piggyback rights, the Company shall have the sole right to select the managing underwriter or underwriters, and (ii) the Holders shall be responsible for any selling fees or commissions in connection with such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, a Majority of such Holders (in respect of a registration under Section 7(b) only) and such managing underwriter, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Underwriters' Securities and may, at their option, require that any or all the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders and their intended methods of distribution.
Appears in 1 contract
Covenants of the Company With Respect to Registration. The In connection with any registration under Section 9.2 or 9.3 hereof, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than thirty a registration statement within ninety (3090) business days following of receipt of any demand therefor, shall use its best efforts and to have any such Registration Statement registration statements declared effective at the earliest possible time, and shall furnish each holder of Registrable Securities Holder desiring to sell Warrant Shares such number of prospectuses as shall reasonably be requested. The Company shall also file such applications and other documents as may be necessary to permit the sale of the Warrant Shares to the public during the Registration Period in those states to which the Company and the holders of the Warrants and/or Warrant Shares shall mutually agree.
(b) The Company shall pay all costscosts (excluding fees and expenses of Holder(s)' counsel and any underwriting or selling commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. 9.2 and 7.4.(a9.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses.. The Holder(s) will pay all costs, fees and expenses in connection with the registration statement filed pursuant to Section 9.3(c). 62
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Warrant Shares included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder the Holder(s) of the Registrable Securities Warrant Shares to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holder(s) within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth in Section 7 of the Underwriting Agreement and statement.
(e) In order to provide for just and equitable contribution as set forth under the Act in Section 8 any case in which (i) any Holder of the Underwriting Warrant Shares or controlling person thereof makes a claim for indemnification but it is judicially determined (by the entry of a final judgment or decree by a court of competent jurisdiction and the expiration of time to appeal or the denial of the last right of appeal) that such indemnification may not be enforced in such case notwithstanding the fact that the express provisions of Section 9.4(d) hereof provide for indemnification in such case or (ii) contribution under the Act may be required on the part of any Holder of the Warrant Shares, or controlling person thereof, then the Company, any such Holder of the Warrant Shares, or controlling person thereof shall contribute to the aggregate losses, claims, damages or liabilities to which they may be subject (which shall, for all purposes of this Agreement, include, but not be limited to, all costs of defense and investigation and all attorneys fees), in either such case (after contribution from others) on the basis of relative fault as well as any other relevant equitable considerations. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or a Holder of Warrant Shares, or controlling person thereof on the other and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and such Holders of such securities and such controlling persons agree that it would not be just and equitable if contribution pursuant to this Section 9.4(e) were determined by pro rata allocation or by any other method which does not take account of the equitable considerations referred to in this Section 9.4(e). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 9.4(e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(ef) Any holder The Holder(s) of Registrable Securities the Warrant Shares to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all any loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished in writing, by or on behalf of such HolderHolders, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreementregistration statement.
(fg) Nothing contained in this Agreement shall be construed as requiring any Holder the Holder(s) to exercise the their Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(gh) The Company shall promptly deliver copies not permit the inclusion of all correspondence between any securities other than the Commission Warrant Shares to be included in any registration statement filed pursuant to Section 9.3 hereof, or permit any other registration statement (other than a registration statement on Form S-4 or S-8) to be or remain effective during a one hundred and eighty (180) day period following the effective date of a registration statement filed pursuant to Section 9.3 hereof, without the prior written consent of the Holder(s) of the Warrants and Warrant Shares representing a Majority of such securities or as otherwise required by the terms of any existing registration rights granted prior to the date of this Agreement by the Company to the holders of any of the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement 's securities.
(i) The Company shall furnish to each Holder of Registrable Securities included for registration participating in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda the offering and to the managing each underwriter, if any, a signed counterpart, addressed to such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the offering closing under the underwriting agreement), and (ii) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a "cold comfort" letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in connection such registration statement, in each case covering substantially the same matters with which respect to such Holder's Registrable Securities are being registered registration statement (and shall permit each the prospectus included therein) and, in the case of such Holder and managing underwriter to do such investigation, upon reasonable advance noticeaccountants' letter, with respect to information events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(j) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(k) The Company shall enter into an underwriting agreement with the managing underwriters selected for such underwriting by Holders holding a Majority of the Warrant Shares requested to be included in such underwriting. Such agreement shall be satisfactory in form and substance to the Company, each Holder and such managing underwriters, and shall contain such representations, warranties and covenants by the Company 66 and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holder(s) shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Shares and may, at their option, require that any or omitted from the Registration Statement as it deems reasonably necessary to comply with applicable securities laws or rules all of the National Association of Securities Dealersrepresentations, Inc. Such investigation shall include access to books, records warranties and properties and opportunities to discuss the business covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holder(s). Such Holder(s) shall not be required to make any representations or warranties to or agreements with its officers and independent auditors, all the Company or the underwriters except as they may relate to such reasonable extent Holder(s) and at such reasonable times and as often as any such Holder their intended methods of distribution.
(l) For purposes of this Agreement, the term "Majority" in reference to the Warrants or managing underwriter Warrant Shares, shall reasonably requestmean in excess of fifty percent (50%) of the then outstanding Warrants or Warrant Shares that (i) are not held by the Company, or (ii) have not been resold to the public pursuant to a registration statement filed with the Commission under the Act or Rule 144 promulgated under the Act.
Appears in 1 contract
Covenants of the Company With Respect to Registration. The Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the Company shall file the Registration Statement as expeditiously as possible, but in any event no later than thirty twenty (3020) business days following receipt of any demand therefor, shall use its best efforts to have any such Registration Statement declared effective at the earliest possible time, and shall furnish each holder of Registrable Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costs, fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances allowance applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements filed pursuant to Sections 7.3. 7.3 and 7.4.(a7.4(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities included in the Registration Statement for offering and sale under the securities or blue sky laws of such states as are reasonably requested by the holders of such securities, provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder of the Registrable Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.Registration
(e) Any holder of Registrable Securities to be sold pursuant to a Registration Statementregistration statement, and such Holder's successors and assigns, shall severally, and not jointly, indemnify, the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such Holderholder, or such Holder's successors or assigns, for specific inclusion in such Registration Statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have Underwriter has agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.
(f) Nothing contained in this Agreement shall be construed as requiring any Holder to exercise his Warrants or the Underlying Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(g) If the Company shall fail to comply with the provisions of this Article 7, the Company shall, in addition to any other equitable or other relief available to the holders of Registrable Securities, be liable for any or all incidental, special and consequential damages sustained by the holders of Registrable Securities, requesting registration of their Registrable Securities.
(h) The Company shall promptly deliver copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to each Holder holder of Registrable Securities included for such registration in such Registration Statement pursuant to Section 7.3 hereof or Section 7.4 hereof that requests requesting such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each holder of Registrable Securities and such Holder and managing underwriter to do such reasonable investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder holder of Registrable Securities or managing underwriter shall reasonably request.
Appears in 1 contract
Covenants of the Company With Respect to Registration. The Company covenants and agrees as follows:
(a) 1. In connection with any registration under Section 7.4 hereof, the Company shall file the Registration Statement as expeditiously as possible, but in any no event no later than thirty forty-five (3045) business days following receipt of any demand therefortherefor (unless delayed by the failure of a holder of Registrable Securities to promptly furnish such information necessary to complete such registration statement), shall use its best efforts to have any such Registration Statement declared effective at the earliest possible time, time and shall furnish each holder of Registrable Securities such number of prospectuses as shall reasonably be requested.
(b) 2. The Company shall pay all costs, fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements filed pursuant to Sections 7.3. 7.3 and 7.4.(a7.4(a) hereof (excluding any underwriting discounts and commissions which may be incurred in connection with the sale of any Registrable Securities and fees of counsel or any advisor to the Holders of Registrable Securities) including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses.
(c) 3. The Company will take all reasonably necessary action which may be required in qualifying or registering the Registrable Securities included in the a Registration Statement for offering and sale under the securities or blue sky laws of such states as are reasonably requested by the holders of such securities, provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) 4. The Company shall indemnify any holder of the Registrable Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement Registration Statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth contained in Section 7 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 6 of the Underwriting Agreement.
(e) 5. Any holder of Registrable Securities to be sold pursuant to a Registration Statement, and such Holder's its successors and assigns, shall severally, and not jointly, indemnify, the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished in writing by or on behalf of such Holderholder, or such Holder's its successors or assigns, for specific inclusion in such Registration Statement to the same extent and with the same effect as the provisions contained in Section 5 of the Underwriting Agreement pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 6 of the Underwriting Agreement.
(f) 6. Nothing contained in this Agreement shall be construed as requiring any Holder to exercise the his Warrants held by such Holder prior to the initial filing of any Registration Statement or the effectiveness thereof.
(g) 7. The Company shall deliver promptly deliver to each holder of Registrable Securities participating in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to and permit each Holder holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter underwriters to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that each such holder of Registrable Securities agrees not to disclose such information without the prior consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder holder of Registrable Securities or managing underwriter shall reasonably request.
8. If required by the underwriter in connection with an underwritten offering which includes Registrable Securities pursuant to Article 7, the Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting, such agreement shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriter, the holders of Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of such holders of Registrable Securities. Such holders of Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such holders of Registrable Securities and their intended methods of distribution.
Appears in 1 contract
Covenants of the Company With Respect to Registration. The In connection with any registration under Section (h) or (i) hereof, the Company covenants and agrees as follows:
(ai) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than thirty a registration statement within sixty (3060) business days following of receipt of any demand therefor, shall use its best efforts to have any such Registration Statement registration statement declared effective at the earliest possible time, and shall furnish each holder of Registrable Holder desiring to sell Warrant Securities such number of prospectuses as shall reasonably be requested. The Company will deliver the securities within three-days of the effective date or sooner.
(bii) The Company shall pay all costscosts (excluding fees and expenses of Holder(s)' counsel and any underwriting or selling commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. (h), (i) and 7.4.(a(j) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section (j)(i), the Company shall, in addition to any other equitable or other relief available to the Holder(s), extend the Exercise Period by such number of days as shall equal the delay caused by the Company's failure.
(ciii) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as are reasonably requested by the holders of such securitiesHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(div) The Company shall indemnify any holder the Holder(s) of the Registrable Warrant Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), from and against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth Underwriter contained in Section 7 of the Underwriting Agreement and relating to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreementoffering.
(ev) Any holder The Holder(s) of Registrable the Warrant Securities to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such HolderHolders, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement registration statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth contained in Section 7 of the Underwriting Agreement and pursuant to provide for just and equitable contribution as set forth in Section 8 of which the Underwriting AgreementUnderwriter has agreed to indemnify the Company.
(fvi) Nothing contained in this Agreement shall be construed as requiring any Holder to The Holder(s) may exercise the their Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(gvii) The Company shall not permit the inclusion of any securities other than the Warrant Securities to be included in any registration statement filed pursuant to Section (i) hereof, or permit any other registration statement to be or remain effective during the effectiveness of a registration statement filed pursuant to Section (i) hereof, other than a secondary offering of equity securities of the Company, without the prior written consent of the Holders of the Warrants and Warrant Securities representing a Majority of such securities (assuming an exercise of all the Warrants underlying the Warrants).
(viii) The Company shall furnish to each Holder participating in the offering and to each underwriter, if any, a signed counterpart, addressed to such Holder or underwriter, of (x) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (y) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(ix) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(x) The Company shall deliver promptly deliver to each Holder participating in the offering requesting the correspondence and memoranda described below and to the managing underwriters, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to registration statement and permit each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD") or an Exchange. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.
(xi) The Company shall enter into an underwriting agreement with the managing underwriters, which may be the Underwriter. Such agreement shall be satisfactory in form and substance to the Company, and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter; provided however, that no Holder shall be required to make any representations, warranties or covenants or grant any indemnity to which it shall object in any such underwriting agreement. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Securities and may, at their option, require that any or all the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders and their intended methods of distribution.
(xii) For purposes of this Agreement, the term " Majority" in reference to the Holders of Warrants or Warrant Securities, shall mean in excess of fifty (50%) of the then outstanding Warrants and Warrant Securities that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith or (ii) have not been resold to the public pursuant to a registration statement filed with the Commission under the Act or pursuant to Rule 144.
Appears in 1 contract
Covenants of the Company With Respect to Registration. The In ----------------------------------------------------- connection with any registrations under Sections 7(b) and 7(c) hereof, the Company covenants and agrees as follows:
(a1) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than a registration statement within thirty (30) business calendar days following of receipt of any demand therefortherefor pursuant to Section 7(b); provided, however, that the Company shall not be required to produce audited or unaudited financial statements for any period prior to the date such financial statements are required to be filed in a report on Form 10-KSB or Form 10-QSB, as the case may be. The Company shall use its best efforts to have any such Registration Statement registration statement declared effective at the earliest possible time, and shall furnish each holder of Registrable Holder desiring to sell Underwriters' Securities such number of prospectuses as shall reasonably be requested.
(b2) The Company shall pay all costscosts (excluding fees and expenses of Holders' counsel and any underwriting discounts or selling fees, expenses or commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements any registration statement filed pursuant to Sections 7.3. 7(b) and 7.4.(a7(c) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses.
(c3) The Company will take all necessary action which may be required in qualifying use its best efforts to qualify or registering register the Registrable Underwriters' Securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolders, provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d4) The Company shall indemnify any holder the Holders of the Registrable Underwriters' Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended 1934 (the "Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement statement, but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth Underwriter contained in Section 8 of the Underwriting Agreement.
(e5) Any holder The Holders of Registrable the Underwriters' Securities to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such HolderHolders, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement registration statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth contained in Section 8 of the Underwriting AgreementAgreement pursuant to which the Underwriter has agreed to indemnify the Company.
(f6) Nothing contained in this Agreement shall be construed as requiring any Holder the Holders to exercise the Warrants held by such Holder their Underwriters' Warrant prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof, provided that such Holders have made arrangements reasonably satisfactory to the Company to pay the exercise price from the proceeds of such offering.
(g7) The Company shall furnish to each Underwriter for the offering, if any, such documents as such Underwriter may reasonably require.
(8) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(9) The Company shall deliver promptly deliver to each Holder participating in the offering requesting the correspondence described below and any managing Underwriter copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to registration statement and permit each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter Underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"). Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.
(10) The Company shall enter into an underwriting agreement with the managing underwriter selected for such underwriting by Holders holding a Majority of the Underwriters' Securities requested to be included in such underwriting, provided, however that such managing underwriter shall be reasonably acceptable to the Company, except that in connection with an offering for which the Holders have piggyback rights, the Company shall have the sole right to select the managing underwriter or underwriters. Such underwriting agreement shall be satisfactory in form and substance to the Company, a Majority of such Holders (in respect of a registration under Section 7(b) only) and such managing underwriter, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Underwriters' Securities. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders and their intended methods of distribution.
Appears in 1 contract
Samples: Underwriter's Warrant Agreement (Vertical Health Solutions Inc)
Covenants of the Company With Respect to Registration. The In connection with any registration under Section 7.2 or 7.3 hereof, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than a registration statement within thirty (30) business days following of receipt of any demand therefor, shall use its best efforts to have any such Registration Statement registration statements declared effective at the earliest possible time, and shall furnish each holder of Registrable Holder desiring to sell Warrant Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costscosts (excluding fees and expenses of Holder(s)' counsel and any underwriting or selling commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. 7.2 and 7.4.(a7.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder of the Registrable Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter within the meaning of Section 15 of the Act or Section 20(aHolder(s) of the Warrant Securities Exchange Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.be
(e) Any holder The Holder(s) of Registrable the Warrant Securities to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such HolderHolders, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement registration statement to the same extent and with the same effect as the provisions contained in Section 7 of the Underwriting Agreement pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting AgreementCompany.
(f) Nothing contained in this Agreement shall be construed as requiring any Holder the Holder(s) to exercise the their Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(g) The Company shall not permit the inclusion of any securities other than the
(h) The Company shall furnish to each Holder participating in the offering and to each underwriter, if any, a signed counterpart, addressed to such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at
(j) The Company shall deliver promptly deliver to each Holder participating in the offering requesting the correspondence and memoranda described below and to the managing underwriters, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to registration statement and permit each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. NASD. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.
(k) The Company shall enter into an underwriting agreement with the managing underwriters selected for such underwriting by Holders holding a Majority of the Warrant Securities requested pursuant to Section 7.3(a) to be included in such underwriting, which may be the Representative. Such agreement shall be satisfactory in form and substance to the Company, each Holder and such managing underwriter(s), and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter(s). The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Securities whether pursuant to Section 7.2 or Section 7.3(a) and may, at their option, require that any or all of the representations, warranties and covenants of the Company to or for the benefit of such underwriter(s) shall also be made to and for the benefit of such Holders.
(l) For purposes of this Agreement, the term "Majority" in reference to the Holders of Warrants or Warrant Securities, shall mean in excess of fifty percent (50%) of the then outstanding Warrants or Warrant Securities that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith and (ii) have not been resold to the public pursuant to a registration statement filed with the Commission under the Act. 8. Adjustments to Exercise Price and Number of Securities.
Appears in 1 contract
Samples: Representative's Warrant Agreement (Ophidian Pharmaceuticals Inc)
Covenants of the Company With Respect to Registration. The In connection with any registration under Section 7.2 or 7.3 hereof, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than thirty a registration statement within forty-five (3045) business days following of receipt of any demand therefor, shall use its best efforts to have any such Registration Statement registration statement declared effective at the earliest possible time, and shall furnish each holder of Registrable Securities Holder desiring to sell Units underlying the Representative's Purchase Options, such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costscosts (excluding fees and expenses of Holder(s) counsel and any underwriting or selling commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. 7.2 and 7.4.(a7.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. The Holder(s) will pay all costs, fees and expenses in connection with any registration statement filed pursuant to Section 7.3(c). If the Company shall fail to comply with the provisions of Section 7.4(a), the Company shall, in addition to any other equitable or other relief available to the Holder(s), be liable for any or all incidental, special and consequential damages and damages due to loss of profit sustained by the Holder(s) requesting registration of their securities hereunder.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Units (inclusive of the shares of Preferred Stock, the Preferred Warrants and the shares of Preferred Stock underlying the Preferred Warrants) underlying the Representative's Purchase Options included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder the Holder(s) of the Registrable Securities Units underlying same to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth Representative contained in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.
(e) Any holder The Holder(s) of Registrable Securities the Units underlying the Representative's Purchase Options to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such HolderHolders, or such Holder's successors or assigns, for specific inclusion in such Registration Statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.their
(f) Nothing contained in this Agreement shall be construed as requiring any Holder the Holder(s) to exercise the Warrants held by such Holder their Representative's Purchase Options prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(g) The Company shall not permit the inclusion of any securities other than the Units underlying the Representative's Purchase Options to be included in any registration statement filed pursuant to Section 7.3 hereof, or permit any other registration statement to be or remain effective during the effectiveness of a registration statement filed pursuant to Section 7.3 hereof, without the prior written consent of the Holders of the Representative's Purchase Options and Units underlying same representing a Majority of such securities.
(h) The Company shall furnish to each Holder participating in the offering and to each underwriter, if any, a signed counterpart, addressed to such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, have made "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(j) The Company shall deliver promptly deliver to each Holder participating in the offering requesting the correspondence and memoranda described below, and the managing underwriters, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to registration statement and permit each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"). Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.
(k) The Company shall enter into an underwriting agreement with the managing underwriters selected for such underwriting by Holders holding a Majority of the Units underlying same requested to be included in such underwriting. Such agreement shall be satisfactory in form and substance to the Company, each Holder and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Units underlying same and may, at their option, require that any or all the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders, their intended methods of distribution, and except for matters related to disclosures with respect to such Holders, contained or required to be contained, in such registration statement under the Act and the rules and regulations thereunder.
(1) For purposes of this Agreement, the term "Majority" in reference to the Holders of Representative's Purchase Options, shall mean in excess of fifty percent (50%) of the then outstanding Representative's Purchase Options assuming full exercise thereof that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their families, persons acting as nominees or in conjunction therewith or (ii) have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Samples: Representative's Purchase Option Agreement (Kids Stuff Inc)
Covenants of the Company With Respect to Registration. The In connection with any registration under Section 7.2 or 7.3 hereof, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than a registration statement within thirty (30) business days following of receipt of any demand therefor, shall use its best efforts to have any such Registration Statement registration statements declared effective at the earliest possible time, and shall furnish each holder of Registrable Holder desiring to sell Warrant Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costscosts (excluding fees and expenses of Holder(s)' counsel and any underwriting or selling commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. 7.2 and 7.4.(a7.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. The Holder(s) will pay all costs, fees and expenses in connection with any registration statement filed pursuant to Section 7.3(c). If the Company shall fail to comply with the provisions of Section 7.4(a), the Company shall, in addition to any other equitable or other relief available to the Holder(s), be liable for any or all incidental or special damages sustained by the Holder(s) requesting registration of their Warrant Securities.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder the Holder(s) of the Registrable Warrant Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holder within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify each of the Underwriters as set forth contained in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.
(e) Any holder The Holder(s) of Registrable the Warrant Securities to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such Holder, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement registration statement to the same extent and with the same effect as the provisions contained in Section 7 of the Underwriting Agreement pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting AgreementCompany.
(f) Nothing contained in this Agreement shall be construed as requiring any Holder the Holder(s) to exercise the their Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(g) The Company shall promptly deliver copies not permit the inclusion of all correspondence between any securities other than the Commission and the Company, its counsel or auditors and all memoranda relating Warrant Securities to discussions with the Commission or its staff with respect to the Registration Statement to each Holder of Registrable Securities be included for in any registration in such Registration Statement statement filed pursuant to Section 7.3 hereof, or permit any other registration statement to be or remain effective during the effectiveness of a registration statement filed pursuant to Section 7.4 hereof that requests 7.3 hereof, without the prior written consent of the Holder of the Warrants and Warrant Securities representing a Majority of such correspondence and memoranda securities.
(h) The Company shall furnish to each Holder participating in the offering and to the managing each underwriter, if any, a signed counterpart, addressed to such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the offering closing under the underwriting agreement), and (ii) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in connection such registration statement, in each case covering substantially the same matters with which respect to such Holder's Registrable Securities are being registered registration statement (and shall permit each the prospectus included therein) and, in the case of such Holder and managing underwriter to do such investigation, upon reasonable advance noticeaccountants' letter, with respect to information contained events subsequent to the date of such financial statements, as are customarily covered in or omitted from opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable after the Registration Statement as it deems reasonably necessary to comply with applicable securities laws or rules effective date of the National Association of Securities Dealersregistration statement, Inc. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as in any such Holder or managing underwriter shall reasonably request.event
Appears in 1 contract
Covenants of the Company With Respect to Registration. The In connection with any registration under Section 9.2 or 9.3 hereof, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the The Company shall file the Registration Statement as expeditiously as possible, but in any event no later than thirty (30) business days following receipt of any demand therefor, shall use its best efforts to file a registration statement within ninety (90) days of receipt of any demand therefore, and to have any such Registration Statement registration statements declared effective at the earliest possible time, and shall furnish each holder of Registrable Securities Holder desiring to sell Warrant Shares such number of prospectuses as shall reasonably be requested. The Company shall also file such applications and other documents as may be necessary to permit the sale of the Warrant Shares to the public during the Registration Period in those states to which the Company and the holders of the Warrants and/or Warrant Shares shall mutually agree.
(b) The Company shall pay all costscosts (excluding fees and expenses of Holder(s)' counsel and any underwriting or selling commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. 9.2 and 7.4.(a9.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. The Holder(s) will pay all costs, fees and expenses in connection with the registration statement filed pursuant to Section 9.3(c).
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Warrant Shares included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder the Holder(s) of the Registrable Securities Warrant Shares to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holder(s) within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth in Section 7 of the Underwriting Agreement and statement.
(e) In order to provide for just and equitable contribution as set forth under the Act in Section 8 any case in which (i) any Holder of the Underwriting Warrant Shares or controlling person thereof makes a claim for indemnification but it is judicially determined (by the entry of a final judgment or decree by a court of competent jurisdiction and the expiration of time to appeal or the denial of the last right of appeal) that such indemnification may not be enforced in such case notwithstanding the fact that the express provisions of Section 9.4(d) hereof provide for indemnification in such case or (ii) contribution under the Act may be required on the part of any Holder of the Warrant Shares, or controlling person thereof, then the Company, any such Holder of the Warrant Shares, or controlling person thereof shall contribute to the aggregate losses, claims, damages or liabilities to which they may be subject (which shall, for all purposes of this Agreement, include, but not be limited to, all costs of defense and investigation and all attorneys fees), in either such case (after contribution from others) on the basis of relative fault as well as any other relevant equitable considerations. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or a Holder of Warrant Shares, or controlling person thereof on the other and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and such Holders of such securities and such controlling persons agree that it would not be just and equitable if contribution pursuant to this Section 9.4(e) were determined by pro rata allocation or by any other method which does not take account of the equitable considerations referred to in this Section 9.4(e). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 9.4(e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(ef) Any holder The Holder(s) of Registrable Securities the Warrant Shares to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all any loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished in writing, by or on behalf of such HolderHolders, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreementregistration statement.
(fg) Nothing contained in this Agreement shall be construed as requiring any Holder the Holder(s) to exercise the their Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(gh) The Company shall promptly deliver copies not permit the inclusion of all correspondence between any securities other than the Commission Warrant Shares to be included in any registration statement filed pursuant to Section 9.3 hereof, or permit any other registration statement (other than a registration statement on Form S-4 or S-8) to be or remain effective during a one hundred and eighty (180) day period following the effective date of a registration statement filed pursuant to Section 9.3 hereof, without the prior written consent of the Holder(s) of the Warrants and Warrant Shares representing a Majority of such securities or as otherwise required by the terms of any existing registration rights granted prior to the date of this Agreement by the Company to the holders of any of the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement 's securities.
(i) The Company shall furnish to each Holder of Registrable Securities included for registration participating in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda the offering and to the managing each underwriter, if any, a signed counterpart, addressed to such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the offering closing under the underwriting agreement), and (ii) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a "cold comfort" letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in connection such registration statement, in each case covering substantially the same matters with which respect to such Holder's Registrable Securities are being registered registration statement (and shall permit each the prospectus included therein) and, in the case of such Holder and managing underwriter to do such investigation, upon reasonable advance noticeaccountants' letter, with respect to information contained events subsequent to the date of such financial statements, as are customarily covered in or omitted from opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(j) The Company shall as soon as practicable after the Registration Statement as it deems reasonably necessary to comply with applicable securities laws or rules effective date of the National Association registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Securities Dealers, Inc. Such investigation shall include access to books, records and properties and opportunities to discuss Rule 158 under the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.Act) an earnings statement (which need not be
Appears in 1 contract
Covenants of the Company With Respect to Registration. The In connection with any registration under Section 7.2 or 7.3 hereof, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than a registration statement within thirty (30) business days following of receipt of any demand therefor, shall use its best efforts to have any such Registration Statement registration statements declared effective at the earliest possible time, and shall furnish each holder of Registrable Holder desiring to sell Warrant Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costscosts (excluding fees and expenses of Holder(s)' counsel and any underwriting or selling commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. 7.2 and 7.4.(a) 7.3 hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with Section 7.4(a), the Company shall, in addition to any other equitable or other relief available to the Holder(s), be liable for any and all incidental or special damages sustained by the Holder(s) requesting registration of its or their Warrants and/or Warrant Securities.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder the Holder(s) of the Registrable Warrant Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify each of the Underwriters as set forth contained in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.
(e) Any holder The Holder(s) of Registrable the Warrant Securities to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such HolderHolders, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement registration statement to the same extent and with the same effect as the provisions contained in Section 7 of the Underwriting Agreement pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting AgreementCompany.
(f) Nothing contained in this Agreement shall be construed as requiring any Holder the Holder(s) to exercise the their Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(g) The Company shall not permit the inclusion of any securities other than the Warrant Securities to be included in any registration statement filed pursuant to Section 7.3 hereof, or permit any other registration statement to be or remain effective during the effectiveness of a registration statement filed pursuant to Section 7.3 hereof, without the prior written consent of the Holders of the Warrants and Warrant Securities representing a Majority of such securities.
(h) The Company shall furnish to each Holder participating in the offering and to each underwriter, if any, a signed counterpart, addressed to such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(j) The Company shall deliver promptly deliver to each Holder participating in the offering requesting the correspondence and memoranda described below and to the managing underwriters, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to registration statement and permit each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. NASD. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.
(k) The Company shall enter into an underwriting agreement with the managing underwriters selected for such underwriting by Holders holding a Majority of the Warrant Securities requested to be included in such underwriting, which may be the Representative. Such agreement shall be satisfactory in form and substance to the Company, each Holder and such managing underwriter(s), and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter(s). The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Securities and may, at their option, require that any or all of the representations, warranties and covenants of the Company to or for the benefit of such underwriter(s) shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriter(s) except as they may relate to such Holders and their intended methods of distribution.
(l) In addition to the Warrant Securities, upon the written request therefor by any Holder(s), the Company shall include in the registration statement any other securities of the Company held by such Holder(s) as of the date of filing of such registration statement, including without limitation restricted shares of Common Stock, options, warrants or any other securities convertible into shares of Common Stock.
(m) For purposes of this Agreement, the term "Majority" in reference to the Holders of Warrants or Warrant Securities, shall mean in excess of fifty percent (50%) of the then outstanding Warrants or Warrant Securities that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith and (ii) have not been resold to the public pursuant to a registration statement filed with the Commission under the Act.
Appears in 1 contract
Samples: Representative's Warrant Agreement (Multimedia Access Corp)
Covenants of the Company With Respect to Registration. The In connection with any registration under Section 7.1 or 7.2 hereof, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than thirty a registration statement on appropriate form within forty-five (3045) business days following of receipt of any demand therefor, shall use its best efforts to have any such Registration Statement registration statements declared effective at the earliest possible time, and shall furnish each holder of Holder desiring to sell Registrable Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costscosts (other than underwriting or selling commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. 7.1 and 7.4.(a7.2(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expensesexpenses and the fees and expenses of one counsel for all of the holders. The holder(s) will pay all costs, fees and expenses in connection with any registration statement filed pursuant to Section 7.2(c). If the Company shall fail to comply with the provisions of Section 7.3(a), the Company shall, in addition to any other equitable or other relief available to the holder(s), extend the Exercise Period by such number of days as shall equal the delay caused by the Company's failure, and be liable for any or all damages as the holder(s) may be entitled to as a matter of law.
(c) The Company will take all necessary action which may be required use its best efforts, in cooperation with counsel to the underwriters, in qualifying or registering the Registrable Securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as are reasonably requested by the holders of holder(s) shall designate and to keep such securities, qualifications or registrations in effect for so long as the registration statement is in effect; provided that the Company shall not be obligated to execute qualify to do business in any such jurisdiction or to file any general consent to service of process in any jurisdiction in any action other than one arising out of the offering or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder sale of the Registrable Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting AgreementSecurities.
(e) Any holder of Registrable Securities to be sold pursuant to a Registration Statement, and such Holder's successors and assigns, shall severally, and not jointly, indemnify, the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such Holder, or such Holder's successors or assigns, for specific inclusion in such Registration Statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.
(f) Nothing contained in this Agreement shall be construed as requiring any Holder to exercise the Warrants held by such Holder prior to the initial filing of any Registration Statement or the effectiveness thereof.
(g) The Company shall promptly deliver copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.
Appears in 1 contract
Covenants of the Company With Respect to Registration. The In connection with any registration under Section 7.2 or 7.3 hereof, the Company covenants and agrees as follows:
(a) In The Company shall use its best efforts to file a registration statement within 45 days of receipt of any demand therefor in connection with any registration under Section 7.4 hereof, the Company shall file the Registration Statement as expeditiously as possible, but in any event no later than thirty (30) business days following receipt of any demand therefor7.3, shall use its best efforts to have any such Registration Statement registration statements declared effective at the earliest possible time, and shall furnish each holder of Registrable Holder desiring to sell Warrant Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costscosts (excluding fees and expenses of Holder(s)' counsel and any underwriting or selling commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. 7.2 and 7.4.(a7.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, expenses and blue sky fees and expenses. The Holder(s) shall pay all costs, fees and expenses in connection with any registration statement filed pursuant to Section 7.3(c) hereof. If the Company shall fail to comply with its obligations under Section 7.4(a), the Holder(s) shall be entitled to seek equitable or other relief available to the Holder(s).
(c) The Company will shall take all necessary action which that may be required in qualifying or registering the Registrable Warrant Securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder and hold harmless the Holder(s) of the Registrable Warrant Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holder(s) within the meaning of Section 15 of the Securities Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), from and against any and all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoeverwhatsoever including, without limitation, the fees and expenses of legal counsel) to which any of them may become subject under the Securities Act, the Exchange Act or otherwise, arising from such registration statement statement, but only to the same extent and with the same effect as the provisions contained in Section 7(a) of the Underwriting Agreement pursuant to which the Company has agreed to indemnify the Underwriters as set forth in Section 7 each of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting AgreementUnderwriters.
(e) Any holder The Holder(s) of Registrable the Warrant Securities to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, Company and its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange Act, from and against any and all loss, claim, damage or damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoeverwhatsoever including, without limitation, the fees and expenses of legal counsel) to which they may become subject under the Securities Act, the Exchange Act or otherwise, arising from information furnished in writing by or on behalf of such Holder, Holders or such Holder's their successors or assigns, specifically for specific inclusion in such Registration Statement registration statement, but only to the same extent and with the same effect as the provisions provision pursuant to which the Underwriters have agreed to indemnify the Company as set forth contained in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 7(b) of the Underwriting Agreement.
(f) Nothing contained in this Agreement shall be construed as requiring any Holder the Holder(s) to exercise the their Representative's Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(g) The Company shall not permit the inclusion of any securities other than the Warrant Securities to be included in any registration statement filed pursuant to Section 7.3 hereof or permit any other registration statement to be or remain effective during the effectiveness of the registration statement filed pursuant to Section 7.3 hereof without the prior written consent of the Holders of the Representative's Warrants and the other Warrant Securities representing a Majority of such securities.
(h) The Company shall cause to be furnished to each Holder participating in the offering and to each underwriter, if any, a signed counterpart, addressed to such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (or if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Securities Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Securities Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(j) The Company shall deliver promptly deliver to each Holder participating in the offering requesting the correspondence and memoranda described below and to the managing underwriters, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to registration statement and permit each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or the rules and regulations of the National Association of Securities Dealers, Inc. ("NASD"). Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.
(k) With respect to a registration under Section 7.3 hereof, the Company shall enter into an underwriting agreement with the underwriters selected for such underwriting by the Holders of a Majority of the Warrant Securities requesting such registration, which may be the Representative. Such agreement shall be reasonably satisfactory in form and substance to the Company, each Holder and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms and conditions as are customarily contained in agreements of the type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Securities and may, at their option, require that any or all the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders and their intended methods of distribution.
(l) In addition to the Warrant Securities, upon the written request therefor by any Holder(s), the Company shall include in the registration statement any other securities of the Company held by such Holder(s) or issuable upon conversion or exercise or in exchange for securities held by such Holder(s) as of the date of filing of such registration statement.
(m) For purposes of this Agreement, the term "Majority" or "66-2/3%" in reference to the Holders of Representative's Warrants and/or other Warrant Securities, shall mean in excess of 50%, in the former case, and 66-2/3%, in the latter case, of the shares of Common Stock issued or issuable upon exercise of all then outstanding Representative's Warrants and/or Warrant Securities (assuming the exercise of all of the Representative's Warrants) that (i) are not held by the Company, an affiliate, officer, creditor, employee, or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith, and (ii) have not been resold to the public.
Appears in 1 contract
Samples: Representative's Warrant Agreement (Apollo Biopharmaceutics Inc)
Covenants of the Company With Respect to Registration. The In connection with any registration under Section 7.2 or 7.3 hereof, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than a registration statement within thirty (30) business days following of receipt of any demand therefor, shall use its best efforts to have any such Registration Statement registration statement declared effective at the earliest possible time, and shall furnish each holder of Registrable Securities Holder desiring to sell Common Stock underlying the Underwriter's Warrants, such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costscosts (excluding fees and expenses of Holder(s) counsel and any underwriting or selling commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. 7.2 and 7.4.(a7.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. The Holder(s) will pay all costs, fees and expenses in connection with any registration statement filed pursuant to Section 7.3(c). If the Company shall fail to comply with the provisions of Section 7.4(a), the Company shall, in addition to any other equitable or other relief available to the Holder(s), be liable for any or all incidental, special and consequential damages and damages due to loss of profit sustained by the Holder(s) requesting registration of their Warrant Shares.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Common Stock underlying the Underwriter's Warrants included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder the Holder(s) of the Registrable Securities Common Stock underlying same to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth Underwriter contained in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.
(e) Any holder The Holder(s) of Registrable Securities the Common Stock underlying the Underwriter's Warrants to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such HolderHolders, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement registration statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth contained in Section 7 of the Underwriting Agreement and pursuant to provide for just and equitable contribution as set forth in Section 8 of which the Underwriting AgreementUnderwriter has agreed to indemnify the Company.
(f) Nothing contained in this Agreement shall be construed as requiring any Holder the Holder(s) to exercise the their Underwriter's Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(g) The Company shall not permit the inclusion of any securities other than the Common Stock underlying the Underwriter's Warrants to be included in any registration statement filed pursuant to Section 7.3 hereof, or permit any other registration statement to be or remain effective during the effectiveness of a registration statement filed pursuant to Section 7.3 hereof, without the prior written consent of the Holders of the Underwriter's Warrants and Common Stock underlying same representing a Majority of such securities.
(h) The Company shall furnish to each Holder participating in the offering and to each underwriter, if any, a signed counterpart, addressed to such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, have made "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(j) The Company shall deliver promptly deliver to each Holder participating in the offering requesting the correspondence and memoranda described below, and the managing underwriters, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to registration statement and permit each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"). Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.
(k) The Company shall enter into an underwriting agreement with the managing underwriters selected for such underwriting by Holders holding a Majority of the Common Stock underlying same requested to be included in such underwriting. Such agreement shall be satisfactory in form and substance to the Company, each Holder and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Common Stock underlying same and may, at their option, require that any or all the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders, their intended methods of distribution, and except for matters related to disclosures with respect to such Holders, contained or required to be contained, in such registration statement under the Act and the rules and regulations thereunder.
(1) For purposes of this Agreement, the term "Majority" in reference to the Holders of Underwriter's Warrants, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants assuming full exercise thereof that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their families, persons acting as nominees or in conjunction therewith or (ii) have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Covenants of the Company With Respect to Registration. The In connection with any registration under Section 7.2 or 7.3 hereof, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than thirty a registration statement within sixty (3060) business days following of receipt of any demand therefor, shall use its best efforts to have any such Registration Statement registration statements declared effective at the earliest possible time, and shall furnish each holder of Registrable Holder desiring to sell Warrant Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costscosts (excluding fees and expenses of Holder(s)' counsel and any underwriting or selling commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. 7.2 and 7.4.(a7.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. The Holder(s) will pay all costs, fees and expenses in connection with any registration statement filed pursuant to Section 7.3(c).
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder enter into an underwriting agreement with the managing underwriters selected for such underwriting by Holders holding a Majority of the Registrable Warrant Securities requested to be sold pursuant included in such underwriting, which underwriters to be approved by the Company. Such agreement shall be satisfactory in form and substance to the Company, each Holder and such managing underwriter(s), and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter(s). The Holders shall be parties to any Registration Statement underwriting agreement relating to an underwritten sale of their Warrant Securities and may, at their option, require that any underwriter or person deemed to be an underwriter under all the Act representations, warranties and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter within the meaning of Section 15 covenants of the Act Company to or Section 20(afor the benefit of such underwriter(s) shall also be made to and for the benefit of the Securities Exchange Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage, expense such Holders. Such Holders shall not be required to make any representations or liability (including all expenses reasonably incurred in investigating, preparing warranties to or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement to the same extent and agreements with the same effect Company or the underwriter(s) except as the provisions pursuant they may relate to which the Company has agreed to indemnify the Underwriters as set forth in Section 7 such Holders and their intended methods of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreementdistribution.
(e) Any holder For purposes of Registrable this Agreement, the term "Majority" in reference to the Holders of Warrants or Warrant Securities, shall mean in excess of fifty percent (50%) of the then outstanding Warrants or Warrant Securities that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith and (ii) have not been resold to be sold the public pursuant to a Registration Statement, and such Holder's successors and assigns, shall severally, and not jointly, indemnify, registration statement filed with the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject Commission under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such Holder, or such Holder's successors or assigns, for specific inclusion in such Registration Statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.
(f) Nothing contained in this Agreement shall be construed as requiring any Holder to exercise the Warrants held by such Holder prior to the initial filing of any Registration Statement or the effectiveness thereof.
(g) The Company shall promptly deliver copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.
Appears in 1 contract
Samples: Warrant Agreement (Emerging Growth Acquisition Corp I)
Covenants of the Company With Respect to Registration. The In connection with any registration under Section 9.2 or 9.3 hereof, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than thirty a registration statement within ninety (3090) business days following of receipt of any demand therefor, shall use its best efforts and to have any such Registration Statement registration statements declared effective at the earliest possible time, and shall furnish each holder of Registrable Securities Holder desiring to sell Warrant Shares such number of prospectuses as shall reasonably be requested. The Company shall also file such applications and other documents as may be necessary to permit the sale of the Warrant Shares to the public during the Registration Period in those states to which the Company and the holders of the Warrants and/or Warrant Shares shall mutually agree.
(b) The Company shall pay all costscosts (excluding fees and expenses of Holder(s)' counsel and any underwriting or selling commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. 9.2 and 7.4.(a9.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. The Holder(s) will pay all costs, fees and expenses in connection with the registration statement filed pursuant to Section 9.3(c).
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Warrant Shares included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder the Holder(s) of the Registrable Securities Warrant Shares to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holder(s) within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth in Section 7 of the Underwriting Agreement and statement.
(e) In order to provide for just and equitable contribution as set forth under the Act in Section 8 any case in which (i) any Holder of the Underwriting Warrant Shares or controlling person thereof makes a claim for indemnification but it is judicially determined (by the entry of a final judgment or decree by a court of competent jurisdiction and the expiration of time to appeal or the denial of the last right of appeal) that such indemnification may not be enforced in such case notwithstanding the fact that the express provisions of Section 9.4(d) hereof provide for indemnification in such case or (ii) contribution under the Act may be required on the part of any Holder of the Warrant Shares, or controlling person thereof, then the Company, any such Holder of the Warrant Shares, or controlling person thereof shall contribute to the aggregate losses, claims, damages or liabilities to which they may be subject (which shall, for all purposes of this Agreement, include, but not be limited to, all costs of defense and investigation and all attorneys fees), in either such case (after contribution from others) on the basis of relative fault as well as any other relevant equitable considerations. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand, or a Holder of Warrant Shares, or controlling person thereof on the other, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and such Holders of such securities and such controlling persons agree that it would not be just and equitable if contribution pursuant to this Section 9.4(e) were determined by pro rata allocation or by any other method which does not take account of the equitable considerations referred to in this Section 9.4(e). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 9.4(e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(ef) Any holder The Holder(s) of Registrable Securities the Warrant Shares to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all any loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by in writing by, or on behalf of of, such HolderHolders, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreementregistration statement.
(fg) Nothing contained in this Agreement shall be construed as requiring any Holder the Holder(s) to exercise the their Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(gh) The Company shall promptly deliver copies not permit the inclusion of all correspondence between any securities other than the Commission Warrant Shares to be included in any registration statement filed pursuant to Section 9.3 hereof, or permit any other registration statement (other than a registration statement on Form S-4 or S-8) to be or remain effective during a one hundred and eighty (180) day period following the effective date of a registration statement filed pursuant to Section 9.3 hereof, without the prior written consent of the Holder(s) of the Warrants and Warrant Shares representing a Majority of such securities or as otherwise required by the terms of any existing registration rights granted prior to the date of this Agreement by the Company to the holders of any of the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement 's securities.
(i) The Company shall furnish to each Holder of Registrable Securities included for registration participating in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda the offering and to the managing each underwriter, if any, a signed counterpart, addressed to such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the offering closing under the underwriting agreement), and (ii) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a "cold comfort" letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in connection such registration statement, in each case covering substantially the same matters with which respect to such Holder's Registrable Securities are being registered registration statement (and shall permit each the prospectus included therein) and, in the case of such Holder and managing underwriter to do such investigation, upon reasonable advance noticeaccountants' letter, with respect to information events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(j) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(k) The Company shall enter into an underwriting agreement with the managing underwriters selected for such underwriting by Holders holding a Majority of the Warrant Shares requested to be included in such underwriting. Such agreement shall be satisfactory in form and substance to the Company, each Holder and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holder(s) shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Shares and may, at their option, require that any or omitted from the Registration Statement as it deems reasonably necessary to comply with applicable securities laws or rules all of the National Association of Securities Dealersrepresentations, Inc. Such investigation shall include access to books, records warranties and properties and opportunities to discuss the business covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holder(s). Such Holder(s) shall not be required to make any representations or warranties to or agreements with its officers and independent auditors, all the Company or the underwriters except as they may relate to such reasonable extent Holder(s) and at such reasonable times and as often as any such Holder their intended methods of distribution.
(l) For purposes of this Agreement, the term "Majority" in reference to the Warrants or managing underwriter Warrant Shares, shall reasonably requestmean in excess of fifty percent (50%) of the then outstanding Warrants or Warrant Shares that (i) are not held by the Company, or (ii) have not been resold to the public pursuant to a registration statement filed with the Commission under the Act or Rule 144 promulgated under the Act.
Appears in 1 contract
Covenants of the Company With Respect to Registration. The In connection with any registration under Section 7.2 or 7.3 hereof, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than a registration statement within thirty (30) business days following of receipt of any demand therefor, shall use its best efforts to have any such Registration Statement registration statements declared effective at the earliest possible time, and shall furnish each holder of Registrable Securities Holder desiring to sell Warrant Shares such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costscosts (excluding fees and expenses of Holder(s)' counsel and any underwriting or selling commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. 7.2 and 7.4.(a7.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. The Holder(s) will pay all costs, fees and expenses in connection with any registration statement filed pursuant to Section 7.3(c). If the Company shall fail to comply with provisions of Section 7.4(a), the Company shall, in addition to any other equitable or other relief available to the Holder(s), be liable for any or all incidental or special damages sustained by the Holder(s) requesting registration of their Warrant Shares.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Warrant Shares included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder and hold harmless the Holder(s) of the Registrable Securities Warrant Shares to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), from and against any and all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoeverwhatsoever including, without limitation, the fees and expenses of legal counsel) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth Representative contained in Section 8 of the Underwriting Agreement.
(e) Any holder The Holder(s) of Registrable Securities the Warrant Shares to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, from and against any and all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished in writing by or on behalf of such HolderHolders, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement registration statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth contained in Section 8 of the Underwriting AgreementAgreement pursuant to which the Representative has agreed to indemnify the Company.
(f) Nothing contained in this Agreement shall be construed as requiring any Holder the Holder(s) to exercise the their Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(g) The Company shall not permit the inclusion of any securities other than the Warrant Shares to be included in any registration statement filed pursuant to Section 7.3 hereof, or permit any other registration statement to be or remain effective during the effectiveness of a registration statement filed pursuant to Section 7.3 hereof, without the prior written consent of the Holders of the Warrants and Warrant Shares representing a Majority of such securities.
(h) The Company shall furnish to each Holder participating in the offering and to each underwriter, if any, a signed counterpart, addressed to such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(j) The Company shall deliver promptly deliver to each Holder participating in the offering requesting the correspondence and memoranda described below and to the managing underwriters, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to registration statement and permit each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter underwriters to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or the rules and regulations of the National Association of Securities Dealers, Inc. ("NASD"). Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.
(k) The Company shall enter into an underwriting agreement with the underwriters selected for such underwriting by the Holders of a Majority of the Warrant Shares requested to be included in such underwriting, which may be the Representative. Such agreement shall be satisfactory in form and substance to the Company, each Holder and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Shares and may, at their option, require that any or all the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders and their intended methods of distribution.
(l) In addition to the Warrant Shares, upon the written request therefor by any Holder(s), the Company shall include in the registration statement any other securities of the Company held by such Holder(s) as of the date of filing of such registration statement, including without limitation restricted shares of Common Stock, options, warrants or any other securities convertible into shares of Common Stock.
(m) For purposes of this Agreement, the term "Majority" in reference to the Holders of Warrants or Warrant Shares, shall mean in excess of fifty percent (50%) of the then outstanding Warrants or Warrant Shares that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith and (ii) have not been resold to the public.
Appears in 1 contract
Covenants of the Company With Respect to Registration. The In connection with any registration under Sections 7.2 or 7.3 hereof, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than a registration statement within thirty (30) business days following of receipt of any demand therefor, shall use its best efforts to have any such Registration Statement registration statements declared effective at the earliest possible time, and shall furnish each holder of Registrable Holder desiring to sell Warrant Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costscosts (excluding fees and expenses of Holder(s)' counsel and any underwriting or selling commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. 7.2 and 7.4.(a7.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. The Holder(s) whose Warrant Securities are the subject of such registration statement will pay all costs, fees and expenses in connection with any registration statement filed pursuant to Section 7.3(c).
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder the Holder(s) of the Registrable Warrant Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify each of the Underwriters as set forth contained in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.
(e) Any holder The Holder(s) of Registrable the Warrant Securities to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such HolderHolders, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement registration statement to the same extent and with the same effect as the provisions contained in Section 7 of the Underwriting Agreement pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting AgreementCompany.
(f) Nothing contained in this Agreement shall be construed as requiring any Holder the Holder(s) to exercise the their Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(g) The Company shall not permit the inclusion of any securities other than the Warrant Securities to be included in any registration statement filed pursuant to Section 7.3 hereof, or permit any other registration statement to be or remain effective during the effectiveness of a registration statement filed pursuant to Section 7.3 hereof, without the prior written consent of the Holders of the Warrants and Warrant Securities representing a Majority of such securities.
(h) The Company shall furnish to each Holder participating in the offering and to each underwriter, if any, a signed counterpart, addressed to such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(j) The Company shall deliver promptly deliver to each Holder participating in the offering requesting the correspondence and memoranda described below and to the managing underwriters, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to registration statement and permit each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. NASD. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.
(k) The Company shall enter into an underwriting agreement with the managing underwriters selected for such underwriting by Holders holding a Majority of the Warrant Securities requested to be included in such underwriting, which may be the Representative. Such agreement shall be satisfactory in form and substance to the Company, each Holder and such managing underwriter(s), and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter(s). The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Securities and may, at their option, require that any or all of the representations, warranties and covenants of the Company to or for the benefit of such underwriter(s) shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriter(s) except as they may relate to such Holders and their intended methods of distribution.
(l) In addition to the Warrant Securities, upon the written request therefor by any Holder(s), the Company shall include in the registration statement any other securities of the Company held by such Holder(s) as of the date of filing of such registration statement, including without limitation restricted shares of Common Stock, options, warrants or any other securities convertible into shares of Common Stock.
(m) For purposes of this Agreement, the term "Majority" in reference to the Holders of Warrants or Warrant Securities, shall mean in excess of fifty percent (50%) of the then outstanding Warrants or Warrant Securities that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith and (ii) have not been resold to the public pursuant to a registration statement filed with the Commission under the Act.
Appears in 1 contract
Samples: Representative's Warrant Agreement (Commodore Separation Technologies Inc)
Covenants of the Company With Respect to Registration. The In connection with any registration under Section 7.2 or 7.3 hereof, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than a registration statement within thirty (30) business days following of receipt of any demand therefor, shall use its best efforts to have any such Registration Statement registration statements declared effective at the earliest possible time, and shall furnish each holder of Registrable Holder desiring to sell Warrant Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costscosts (excluding fees and expenses of Holder(s)' counsel and any underwriting or selling commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. 7.2 and 7.4.(a7.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. The Holder(s) whose Warrant Securities are the subject of such registration statement will pay all costs, fees and expenses in connection with any registration statement filed pursuant to Section 7.3(c).
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder the Holder(s) of the Registrable Warrant Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify each of the Underwriters as set forth contained in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.
(e) Any holder The Holder(s) of Registrable the Warrant Securities to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such HolderHolders, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement registration statement to the same extent and with the same effect as the provisions contained in Section 7 of the Underwriting Agreement pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting AgreementCompany.
(f) Nothing contained in this Agreement shall be construed as requiring any Holder the Holder(s) to exercise the their Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(g) The Company shall not permit the inclusion of any securities other than the Warrant Securities to be included in any registration statement filed pursuant to Section 7.3 hereof, or permit any other registration statement to be or remain effective during the effectiveness of a registration statement filed pursuant to Section 7.3 hereof, without the prior written consent of the Holders of the Warrants and Warrant Securities representing a Majority of such securities.
(h) The Company shall furnish to each Holder participating in the offering and to each underwriter, if any, a signed counterpart, addressed to such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(j) The Company shall deliver promptly deliver to each Holder participating in the offering requesting the correspondence and memoranda described below and to the managing underwriters, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to registration statement and permit each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. NASD. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.
(k) The Company shall enter into an underwriting agreement with the managing underwriters selected for such underwriting by Holders holding a Majority of the Warrant Securities requested to be included in such underwriting, which may be the Representative. Such agreement shall be satisfactory in form and substance to the Company, each Holder and such managing underwriter(s), and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter(s). The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Securities and may, at their option, require that any or all of the representations, warranties and covenants of the Company to or for the benefit of such underwriter(s) shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriter(s) except as they may relate to such Holders and their intended methods of distribution.
(l) In addition to the Warrant Securities, upon the written request therefor by any Holder(s), the Company shall include in the registration statement any other securities of the Company held by such Holder(s) as of the date of filing of such registration statement, including without limitation restricted shares of Common Stock, options, warrants or any other securities convertible into shares of Common Stock.
(m) For purposes of this Agreement, the term "Majority" in reference to the Holders of Warrants or Warrant Securities, shall mean in excess of fifty percent (50%) of the then outstanding Warrants or Warrant Securities that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith and (ii) have not been resold to the public pursuant to a registration statement filed with the Commission under the Act.
Appears in 1 contract
Samples: Representative's Warrant Agreement (Omega Orthodontics Inc)
Covenants of the Company With Respect to Registration. The In connection with any registration under Section 7.2 or 7.3 hereof, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the The Company shall use commercially reasonable best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than thirty a registration statement within forty-five (3045) business days following of receipt of any demand therefor, shall use its commercially reasonable best efforts to have any such Registration Statement registration statements declared effective at the earliest possible time, and shall furnish each holder of Registrable the Holder desiring to sell Warrant Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costscosts (excluding any underwriting or selling commissions or other charges of any broker-dealer or any attorney or other person acting on behalf of Holder), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. 7.2 and 7.4.(a7.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.4(a), the Company shall, in addition to any other equitable or other relief available to the Holder, be liable for any and all loss of direct profit damages sustained by the Holder as a result of its inability to sell the Warrant Securities due to such failure (but excluding any indirect or consequential damages).
(c) The Company will take all necessary action which may be reasonably required in qualifying or registering the Registrable Warrant Securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such the states as are reasonably requested by the holders of such securities, provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdictionHolder.
(d) The Company shall indemnify any holder the Holder of the Registrable Warrant Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holder within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.
(e) Any holder of Registrable Securities to be sold pursuant to a Registration Statement, and such Holder's successors and assigns, shall severally, and not jointly, indemnify, the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such Holder, or such Holder's successors or assigns, for specific inclusion in such Registration Statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.
(f) Nothing contained in this Agreement shall be construed as requiring any Holder to exercise the Warrants held by such Holder prior to the initial filing of any Registration Statement or the effectiveness thereof.
(g) The Company shall promptly deliver copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.of
Appears in 1 contract
Covenants of the Company With Respect to Registration. The In connection with the registration under Section 7.1 hereof, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than thirty a registration statement within ninety (3090) business days following of receipt of any demand thereforthe date hereof, shall use its best efforts to have any such Registration Statement registration statement declared effective at the earliest possible time, and shall furnish each holder of Registrable Securities Holder desiring to sell Common Stock such number of prospectuses as shall reasonably be requested, and shall maintain the effectiveness of the registration statement for one year from its effective date.
(b) The Company shall pay all costscosts (excluding fees and expenses of Holder(s)' counsel and any underwriting or selling commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. and 7.4.(a) Section 7.1 hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Common Stock included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder the Holder(s) of the Registrable Warrant Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreementstatement.
(e) Any holder The Holder(s) of Registrable Securities the Common Stock to be sold pursuant to a Registration Statementthe registration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such HolderHolders, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreementregistration statement.
(f) Nothing contained in this Agreement shall be construed as requiring any Holder the Holder(s) to exercise the their Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(g) The Company shall promptly deliver copies be permitted to include Common Stock of all correspondence between other shareholders of the Commission and Company in the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to each Holder of Registrable Securities included for registration in such Registration Statement statement filed pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request7.1 hereof.
Appears in 1 contract
Samples: Registration and Warrant Agreement (International Isotopes Inc)
Covenants of the Company With Respect to Registration. The In connection with any registration under Section 7.2 or 7.3 hereof, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than thirty a registration statement within forty-five (3045) business days following of receipt of any demand therefor, shall use its best efforts to have any such Registration Statement registration statement declared effective at the earliest possible time, and shall furnish each holder of Registrable Holder desiring to sell Warrant Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costscosts (excluding fees and expenses of Holder(s)' counsel and any underwriting or selling commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. 7.2 and 7.4.(a7.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. The Holder(s) will pay all costs, fees and expenses in connection with any registration statement filed pursuant to Section 7.3(d). If the Company shall fail to comply with the provisions of Section 7.4(a), the Company shall, in addition to any other equitable or other relief available to the Holder(s), be liable for any or all incidental or special damages sustained by the Holder(s) requesting registration of their Warrant Securities, excluding consequential damages.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder the Holder(s) of the Registrable Warrant Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth contained in Section 7 of the Underwriting Agreement Agreement. The Company further agree(s) that upon demand by an indemnified person, at any time or from time to time, it will promptly reimburse such indemnified person for any loss, claim, damage, liability, cost or expense actually and reasonably paid by the indemnified person as to provide for just and equitable contribution which the Company has indemnified such person pursuant hereto. Notwithstanding the foregoing provisions of this Section 7.4(d) any such payment or reimbursement by the Company of fees, expenses or disbursements incurred by an indemnified person in any proceeding in which a final judgment by a court of competent jurisdiction (after all appeals or the expiration of time to appeal) is entered against the Company or such indemnified person as set forth in Section 8 a direct result of the Underwriting AgreementHolder(s) or such person's gross negligence or willful misfeasance will be promptly repaid to the Company.
(e) Any holder The Holder(s) of Registrable the Warrant Securities to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such HolderHolders, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement registration statement to the same extent and with the same effect as the provisions contained in Section 7 of the Underwriting Agreement pursuant to which the Underwriters have agreed to indemnify the Company. The Holder(s) further agree(s) that upon demand by an indemnified person, at any time or from time to time, they will promptly reimburse such indemnified person for any loss, claim, damage, liability, cost or expense actually and reasonably paid by the indemnified person as to which the Holder(s) have indemnified such person pursuant hereto. Notwithstanding the foregoing provisions of this Section 7.4(e) any such payment or reimbursement by the Holder(s) of fees, expenses or disbursements incurred by an indemnified person in any proceeding in which a final judgment by a court of competent jurisdiction (after all appeals or the expiration of time to appeal) is entered against the Company or such indemnified person as set forth in Section 7 a direct result of the Underwriting Agreement and Company or such person's gross negligence or willful misfeasance will be promptly repaid to provide for just and equitable contribution as set forth in Section 8 of the Underwriting AgreementHolder(s).
(f) Nothing contained in this Agreement shall be construed as requiring any Holder the Holder(s) to exercise the their Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(g) The Company shall not permit the inclusion of any securities other than the Warrant Securities to be included in any registration statement filed pursuant to Section 7.3 hereof, or permit any other registration statement, other than a registration statement that has been declared effective, to be or remain effective during the effectiveness of a registration statement filed pursuant to Section 7.3 hereof, without the prior written consent of the Holders of the Warrants and Warrant Securities representing a Majority of such securities (assuming the exercise of all of the Warrants).
(h) The Company shall furnish to each Holder participating in the offering and to each underwriter, if any, a signed counterpart, addressed to such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(j) The Company shall deliver promptly deliver to each Holder participating in the offering requesting the correspondence and memoranda described below and to the managing underwriter, if any, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to registration statement and permit each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. NASD. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.
(k) The Company shall enter into an underwriting agreement with the managing underwriter selected for such underwriting by Holders holding a Majority of the Warrant Securities requested to be included in such underwriting, which may be the Underwriter. Such agreement shall be satisfactory in form and substance to the Company, each Holder and such managing underwriter, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Securities and may, at their option, require that any or all of the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders and their intended methods of distribution.
(l) In addition to the Warrant Securities, upon the written request therefor by any Holder(s), the Company shall include in the registration statement any other securities of the Company held by such Holder(s) as of the date of filing of such registration statement, including without limitation, restricted shares of Common Stock, options, warrants or any other securities convertible into shares of Common Stock.
(m) For purposes of this Agreement, the term "Majority" in reference to the Holders of Warrants or Warrant Securities shall mean in excess of fifty percent (50%) of the then outstanding Warrants or Warrant Securities that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith and (ii) have not been resold to the public pursuant to a registration statement filed with the Commission under the Act.
Appears in 1 contract
Samples: Underwriter's Warrant Agreement (Cti Industries Corp)
Covenants of the Company With Respect to Registration. The Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the Company shall file the Registration Statement as expeditiously as possible, but in any event no later than thirty twenty (3020) business days following receipt of any demand therefor, shall use its best efforts to have any such Registration Statement declared effective at the earliest possible time, and shall furnish each holder of Registrable Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costs, fees and expenses (other than underwriting indemnity fees, discounts and nonaccountable expense allowances allowance applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements filed pursuant to Sections 7.3. 7.3 and 7.4.(a7.4(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities included in the Registration Statement Statement, for offering and sale under the securities or blue sky laws of such states as are reasonably requested by the holders of such securities, ; provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder of the Registrable Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.
(e) Any holder of Registrable Securities to be sold pursuant to a Registration Statement, and such Holder's successors and assigns, shall severally, and not jointly, indemnify, the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such Holder, or such Holder's successors or assigns, for specific inclusion in such Registration Statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.
(f) Nothing contained in this Agreement shall be construed as requiring any Holder to exercise the Warrants held by such Holder prior to the initial filing of any Registration Statement or the effectiveness thereof.
(g) The Company shall promptly deliver copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.amended
Appears in 1 contract
Covenants of the Company With Respect to Registration. The In connection with any registration under Section 7.2 or 7.3 hereof, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than thirty a registration statement within sixty (3060) business days following of receipt of any demand therefor, shall use its best efforts to have any such Registration Statement registration statements declared effective at the earliest possible time, and shall furnish each holder of Registrable Holder desiring to sell Warrant Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costscosts (excluding fees and expenses of Holder(s)' counsel and any underwriting or selling commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. 7.2 and 7.4.(a) 7.3 hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with Section 7.4(a), the Company shall, in addition to any other equitable or other relief available to the Holder(s), be liable for any and all incidental or special damages sustained by the Holder(s) requesting registration of its or their Warrants and/or Warrant Securities.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder the Holder(s) of the Registrable Warrant Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify each of the Underwriters as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth contained in Section 8 of the Underwriting Agreement.
(e) Any holder The Holder(s) of Registrable the Warrant Securities to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such HolderHolders, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement registration statement to the same extent and with the same effect as the provisions contained in Section 8 of the Underwriting Agreement pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting AgreementCompany.
(f) Nothing contained The Company shall not permit the inclusion of any Securities other than the Warrant Securities to be included in this Agreement shall any registration statement filed pursuant to Section 7.3 hereof, or permit any other registration statement to be construed as requiring any Holder or remain effective during the effectiveness of a registration statement filed pursuant to exercise Section 7.3 hereof, without the prior written consent of the Holders of the Warrants held by and Warrant Securities representing a Majority of such Holder prior to the initial filing of any Registration Statement or the effectiveness thereofSecurities.
(g) The Company shall furnish to each Holder participating in the offering and to each underwriter, if any, a signed counterpart, addressed to such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have
issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of Securities.
(h) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(i) The Company shall deliver promptly deliver to each Holder participating in the offering requesting the correspondence and memoranda described below and to the managing underwriters, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to registration statement and permit each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. NASD. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.
(j) The Company shall enter into an underwriting agreement with the managing underwriters selected for such underwriting by Holders holding a Majority of the Warrant Securities requested to be included in such underwriting, which may be the Representative. Such agreement shall be satisfactory in form and substance to the Company, each Holder and such managing underwriter(s), and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter(s). The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Securities and may, at their option, require that any or all of the representations, warranties and covenants of the Company to or for the benefit of such underwriter(s) shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriter(s) except as they may relate to such Holders and their intended methods of distribution.
(k) For purposes of this Agreement, the term "Majority" in reference to the Holders of Warrants or Warrant Securities, shall mean in excess of fifty percent (50%) of the then outstanding Warrants or Warrant Securities that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith and (ii) have not been resold to the public pursuant to a registration statement filed with the Commission under the Act.
Appears in 1 contract
Samples: Representative's Warrant Agreement (Cluckcorp International Inc)
Covenants of the Company With Respect to Registration. The In connection with any registration under Section (8) or (9) hereof, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than a registration statement within thirty (30) business days following of receipt of any demand therefor, shall use its best efforts to have any such Registration Statement registration statement declared effective at the earliest possible time, and shall furnish each holder of Registrable Holder desiring to sell Warrant Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costscosts (excluding fees and expenses of Holder(s)' counsel and any underwriting or selling commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. 8 and 7.4.(a) 9(a), hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section (10)(a), the Company shall, in addition to any other equitable or other relief available to the Holder(s), extend the Exercise Period by such number of days as shall equal the delay caused by the Company's failure.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in the Registration Statement a registration statement for offering and sale resale under the securities or blue sky laws of such states as are reasonably requested by the holders of such securitiesHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder the Holder(s) of the Registrable Warrant Securities to be sold resold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), from and against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth Underwriter contained in Section 7 of the Underwriting Agreement and relating to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreementoffering.
(e) Any holder The Holder(s) of Registrable the Warrant Securities to be sold resold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such HolderHolders, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement registration statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth contained in Section 7 of the Underwriting Agreement and pursuant to provide for just and equitable contribution as set forth in Section 8 of which the Underwriting AgreementUnderwriter has agreed to indemnify the Company.
(f) Nothing contained in this Agreement shall be construed as requiring any Holder to The Holder(s) may exercise the their Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(g) The Company shall promptly deliver copies not permit the inclusion of all correspondence between any securities other than the Commission and Warrant Securities to be included in any registration statement filed pursuant to Section (9) hereof, or permit any other registration statement to be or remain effective during the effectiveness of a registration statement filed pursuant to Section (9) hereof, other than a secondary offering of equity securities of the Company, its counsel or auditors without the prior written consent of the Holders of the Warrants and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement Warrant Securities representing a Majority of such securities.
(h) The Company shall furnish to each Holder of Registrable Securities included for registration participating in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda the offering and to the managing each underwriter, if any, a signed counterpart, addressed to such Holder or underwriter, of (x) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the offering closing under the underwriting agreement), and (y) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in connection such registration statement, in each case covering substantially the same matters with which respect to such Holder's Registrable Securities are being registered registration statement (and shall permit each the prospectus included therein) and, in the case of such Holder and managing underwriter to do such investigation, upon reasonable advance noticeaccountants' letter, with respect to information contained events subsequent to the date of such financial statements, as are customarily covered in or omitted from opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable after the Registration Statement as it deems reasonably necessary to comply with applicable securities laws or rules effective date of the National Association registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Securities Dealers, Inc. Such investigation shall include access to books, records and properties and opportunities to discuss Rule 158 under the business Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Company Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(k) For purposes of this Agreement, the term "Majority" in reference to the Holders of Warrants or Warrant Securities, shall mean in excess of fifty (50%) of the then outstanding Warrants and Warrant Securities that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith or (ii) have not been resold to the public pursuant to a registration statement filed with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably requestthe Commission under the Act.
Appears in 1 contract
Covenants of the Company With Respect to Registration. The Company hereby covenants and agrees as follows:
(a) In connection with Following the effective date of any registration under Section 7.4 hereofstatement, the Company shall file shall, upon the Registration Statement as expeditiously as possiblerequest of the Holder, but in any event no later than thirty (30) business days following receipt of any demand therefor, shall use its best efforts to have any forthwith supply such Registration Statement declared effective at the earliest possible time, and shall furnish each holder of Registrable Securities such reasonable number of prospectuses copies of the registration statement and prospectus as shall be reasonably be requestedrequested by the Holder to permit the Holder to make a public distribution of the Shares. The obligations of the Company hereunder with respect to the Shares are expressly conditioned on the Holder's furnishing to the Company such appropriate information concerning the Holder, the Shares and the terms of the Holder's offering of such shares as the Company may request.
(b) The Company shall will pay all costs, fees and expenses (other than underwriting feesin connection with any Registration Statement filed; provided, discounts and nonaccountable expense allowances applicable to that the Registrable Securities and Holder shall be solely responsible for the fees and expenses of any counsel retained by the holders of the Registrable Securities) Holder in connection with all Registration Statements filed such registration and any transfer taxes or underwriting discounts, selling commissions or selling fees applicable to the Shares sold by the Holder pursuant to Sections 7.3. and 7.4.(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expensesthereto.
(c) The Company will take all necessary action which may be required in qualifying use reasonable efforts to qualify or registering register the Registrable Securities Shares included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as are reasonably requested by the holders of such securitiesHolder, provided that the Company shall not be obligated to execute or file any general consent to service of process (unless the Company is already then subject to service in such jurisdiction) or to qualify as a foreign corporation to do business under the laws of any such jurisdiction, except as may be required by the Act and its rules and regulations.
(d) The Company shall indemnify any holder of Notwithstanding anything contained herein to the Registrable Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Actcontrary, the Exchange Act or otherwise, arising from such registration statement Company will have no obligation to register the same extent and with Shares if it receives a written opinion of counsel that the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth in Section 7 of the Underwriting Agreement and to provide Shares are eligible for just and equitable contribution as set forth in Section 8 of the Underwriting Agreementsale under Rule 144.
(e) Any holder of Registrable Securities to be sold pursuant to a Registration Statement, and such Holder's successors and assigns, shall severally, and not jointly, indemnify, the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such Holder, or such Holder's successors or assigns, for specific inclusion in such Registration Statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.
(f) Nothing contained in this Agreement shall be construed as requiring any Holder to exercise the Warrants held by such Holder prior to the initial filing of any Registration Statement or the effectiveness thereof.
(g) The Company shall promptly deliver copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.
Appears in 1 contract
Covenants of the Company With Respect to Registration. The In connection with any registration under Section 7.1 or 7.2 hereof, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than thirty a registration statement within sixty (3060) business days following of receipt of any demand therefortherefor in accordance with Section 7.1, shall use its best efforts to have any such Registration Statement registration statement declared effective at the earliest possible time, and shall furnish each holder of Registrable Securities Holder whose securities are included in such registration statement such number of prospectuses as shall reasonably be requested. Notwithstanding the foregoing sentence, the Company shall be entitled to postpone the filing of any registration statement otherwise required to be prepared and filed by it pursuant to this Section 7.4(a) if (i) the Company is under contract or other binding legal obligation for a material acquisition, reorganization or divestiture, or (ii) the Company is publicly committed to a self-tender or exchange offer and the filing of a registration statement would cause a violation of Regulation M under the Securities Exchange Act of 1934. In the event of such postponement, the Company shall be required to file the registration statement pursuant to this Section 7.4(a) upon the earlier of (i) the consummation or termination, as applicable, of the event requiring such postponement or (ii) 90 days after the receipt of the initial demand for such registration.
(b) The Company shall pay all costscosts (excluding fees and expenses of Holder(s) counsel and any underwriting or selling commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. 7.1 and 7.4.(a) 7.2 hereof including, without limitation, the Company's ’s legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.4(a), the Company shall, in addition to any other equitable or other relief available to the Holder(s), be liable for any or all incidental, special and consequential damages and damages due to loss of profit sustained by the Holder(s) requesting registration of their Representative Units, Representative Shares, Representative Warrants and Warrant Shares underlying the Representative Units.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Representative Shares, Representative Warrants and Warrant Shares underlying the Representative Units included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder the Holder(s) of the Registrable Securities Representative’s Unit Purchase Options, Representative Units, Representative Shares and Representative Warrants to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("“Exchange Act"”), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth Representative contained in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.
(e) Any holder The Holder(s) of Registrable Securities Representative’s Unit Purchase Options, Representative Units, Representative Shares, Representative Warrants and Warrant Shares underlying the Representative Units to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such HolderHolders, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement registration statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth contained in Section 7 of the Underwriting Agreement and pursuant to provide for just and equitable contribution as set forth in Section 8 of which the Underwriting AgreementRepresentative has agreed to indemnify the Company.
(f) Nothing contained in this Agreement shall be construed as requiring any Holder the Holder(s) to exercise the their Representative’s Unit Purchase Options or their Unit Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(g) If the Representative Units, Representative Shares, Representative Warrants and Warrant Shares underlying the Representative Units are to be sold in an underwritten public offering, the Company shall use its best efforts to furnish to each Holder participating in the offering and to each such underwriter, a signed counterpart, addressed to such underwriter, of (i) an opinion of counsel to the Company dated the date of the closing under the underwriting agreement, and (ii) a “cold comfort” letter dated the date of the closing under the underwriting agreement signed by the independent public accountants who have issued a report on the Company’s financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants’ letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer’s counsel and in accountants’ letters delivered to underwriters in underwritten public offerings of securities.
(h) The Company shall as soon as practicable after the Effective Date of the registration statement, and in any event within 15 months thereafter, have made “generally available to its security holders” (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the Effective Date of the registration statement.
(i) The Company shall deliver promptly deliver to each Holder participating in the offering requesting the correspondence and memoranda described below, and the managing underwriters, copies of all correspondence between the Commission and the Company, its counsel or auditors and all Company memoranda (excluding memoranda to and from counsel) relating to discussions with the Commission or its staff with respect to the Registration Statement to registration statement and permit each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. (“NASD”). Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.
(j) The Company shall enter into an underwriting agreement with the managing underwriter(s) selected for such underwriting, if any, which underwriter shall be subject to approval by a Majority of Holders requesting to be included in such underwriting. Such underwriting agreement shall be reasonably satisfactory in form and substance to the Company, each Holder and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter(s). The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Representative Units, Representative Shares, Representative Warrants and Warrant Shares underlying the Representative’s Units and may, at their option, require that any or all the representations, warranties and covenants of the Company to or for the benefit of such underwriter(s) shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriter(s) except as they may relate to such Holders, their intended methods of distribution, and except for matters related to disclosures with respect to such Holders, contained or required to be contained, in such registration statement under the Act and the rules and regulations thereunder.
(k) For purposes of this Agreement, computation of a “Majority of Holders” shall exclude Representative’s Unit Purchase Options, Representative Units, Representative Shares and Representative Warrants, that are, at the time of computation, then subject to a current registration statement or have been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Covenants of the Company With Respect to Registration. The In connection with any registration under Sections 7.3 and 7.4 hereof, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than thirty a registration statement within sixty (3060) business days following of receipt of any demand therefor, shall use its best efforts to have any such Registration Statement registration statements declared effective at the earliest possible time, and shall furnish each holder of Holder desiring to sell Registrable Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costscosts (excluding fees and expenses of Holder(s)' counsel and any underwriting or selling commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. 7.3 and 7.4.(a) 7.4 hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.5(a), the Company shall, in addition to any other equitable or other relief available to the Holder(s), extend the exercise period of the Representatives' Warrants by such number of days as shall equal the delay caused by the Company's failure.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securities, Holder(s); provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder the Holder(s) of the Registrable Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify each of the Underwriters as set forth contained in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.
(e) Any holder The Holder(s) of the Registrable Securities to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange exchange Act or otherwise, arising from information furnished by or on behalf of such HolderHolders, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement registration statement to the same extent and with the same effect as the provisions contained in Section 7 of the Underwriting Agreement pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting AgreementCompany.
(f) Nothing contained in this Agreement For a period of one hundred eighty (180) days after the effectiveness of any registration statement filed pursuant to Section 7.4 hereof, the Company shall be construed as requiring not permit any Holder to exercise the Warrants held by such Holder prior other registration statement (other than (1) a registration statement relating to the initial filing of any securities for which the Company has granted demand registration rights, as described in the Prospectus included in the Registration Statement, (2) a registration statement relating to the securities for which the Company has granted piggyback registration rights, as described in the Prospectus included in the Registration Statement and (3) a registration statement filed on Forms S-4 or S-8 to be or remain effective during the effectiveness thereofof a registration statement filed pursuant to Section 7.4 hereof, without the prior written consent of the Holders of the Registrable Securities representing a Majority of such securities.
(g) The Company shall furnish upon request to each Holder participating in the offering and to each underwriter, if any, a signed counterpart, addressed to such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(h) The Company shall as soon as practicable after the effective date of any registration statement filed pursuant to Sections 7.3 and 7.4 hereof, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(i) The Company shall deliver promptly deliver to each Holder participating in the offering requesting the correspondence and memoranda described below and to the managing underwriters, copies of all written correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to registration statement and permit each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter underwriters to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. NASD. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or underwriter shall reasonably
(j) With respect to any registration under Section 7.4 hereof, the Company shall enter into an underwriting agreement with the managing underwriter selected for such underwriting by the Initiating Holders or the Paying Holders, as the case may be. Such agreement shall reasonably requestbe satisfactory in form and substance to the Company, each Holder and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters, except as they may relate to such Holders and their intended methods of distribution.
(k) For purposes of this Agreement, the term "Majority" in reference to the Holders of Registrable Securities, shall mean in excess of fifty percent (50%) of the then outstanding Representatives' Warrants and/or Shares of Preferred Stock issued upon exercise of the Representatives' Warrants that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith and (ii) have not been resold to the public pursuant to a registration statement filed with the Commission under the Act.
Appears in 1 contract
Samples: Underwriting Agreement (Awg LTD)
Covenants of the Company With Respect to Registration. The In connection with any registration under Section 8.2 or Section 8.3 hereof, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than thirty (30) business a registration statement within 30 days following of receipt of any demand therefor, shall use its best efforts to have any such Registration Statement registration statements declared effective at the earliest possible time, and shall furnish each holder of Registrable Securities Holder desiring to sell Warrant Shares such number of prospectuses as shall reasonably be requested. Notwithstanding the foregoing, the Company shall be entitled to postpone, for a period of not more than 120 days after receipt of a request to effect a registration, the filing of any registration statement otherwise required to be prepared and filed by it pursuant to Section 8.3 hereof if, at the time it receives a request for registration, the Board of Directors of the Company determines in its reasonable business judgment that such registration and offering would interfere with any material financing, acquisition, corporate reorganization or other material transaction or development involving the Company and promptly gives the Holders demanding registration written notice of such determination; provided that (i) upon such postponement by the Company, the Company shall be required to file such registration statement as soon as practicable after the Board of Directors of the Company shall determine, in its reasonable business judgment, that such registration and offering will not interfere with the aforesaid material financing, acquisition, corporate reorganization or other material transaction or development involving the Company, (ii) the Company may not utilize this right more than once, (iii) the Holders who made such written request to effect such registration, may, at any time in writing, withdraw such request for such registration and therefore preserve the rights provided in Section 8.3 hereof for such Holders to again request such registration, and (iv) the Exercise Period shall automatically be extended by an additional 180 days.
(b) The Company shall pay all costscosts (excluding fees and expenses of Holder(s)' counsel and any underwriting or selling commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. 8.2 and 7.4.(a8.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. The Holder(s) will pay all costs, fees and expenses in connection with any registration statement filed pursuant to Section 8.3(c). If the Company shall fail to comply with the provisions of Section 8.4(a), the Company shall, in addition to any other equitable or other relief available to the Holder(s), extend the Exercise Period by such number of days as shall equal the delay caused by the Company's failure, and be liable for any or all damages as the Holder(s) may be entitled to as a matter of law.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Warrant Shares included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall agrees to indemnify any holder and hold harmless each Holder of the Registrable Securities Warrant Shares to be sold pursuant to any registration statement ("Registration Statement and any underwriter or person deemed to be an underwriter under the Act Statement") and each person, if any, who controls any such holder or underwriter or person deemed to be an underwriter Holder within the meaning of Section 15 of the Act or Section 20(a) 20 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and each of them, from and against any and all loss, liability, claim, damage, expense or liability action, joint or several (including including, but not limited to, any and all expenses whatsoever reasonably incurred in investigating, preparing or defending against any litigation, commenced or threatened, or any claim whatsoever and any amount paid in settlement of any litigation, commenced or threatened, or of any claim whatsoever) , if such settlement is effected with the written consent of the Company, which consent shall not be unreasonably withheld), to which they or any of them may become subject under the Act, the Exchange Act or other Federal or state statutory law or regulation, at common law or otherwise, arising from insofar as such registration loss, liability, claim, damage, expense or action arises out of (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, (ii) any untrue statement or alleged untrue statement of a material fact contained in a preliminary prospectus or prospectus (or any amendment or supplement thereto), or any omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statement therein, in light of the circumstances under which they were made, not misleading, or (iii) any untrue statement or alleged untrue statement of a material fact contained in any application or other document executed by the Company or based upon written information furnished by or on behalf of the Company filed in any jurisdiction in order to qualify all or any of the Warrant Shares under the securities laws thereof or filed with the Securities and Exchange Commission ("SEC"), the National Association of Securities Dealers, Inc. ("NASD") or any securities exchange, or any omission or alleged omission therefrom of a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that the Company shall not be liable in any such case to the same extent that such untrue statement or omission or such alleged untrue statement or omission was made in reliance upon and in conformity with information furnished in writing by or on behalf of any Holder to the same effect as Company expressly for use in the provisions pursuant Registration Statement (or any amendment thereto), any such preliminary prospectus or the prospectus (or any amendment or supplement thereto) or any such application or document. The indemnity contained in this Section 8.4(d) is in addition to any liability which the Company has agreed may otherwise have to indemnify the Underwriters as set forth in Section 7 any Holder or any controlling person of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreementa Holder.
(e) Any holder Each Holder severally agrees that it will indemnify and hold harmless the Company, each of Registrable Securities to be sold pursuant to a its officers who signs the Registration Statement, and such Holder's successors and assigns, shall severallyeach of its directors, and not jointly, indemnify, the Company, its officers and directors and each person, if any, person who controls the Company within the meaning of Section 15 of the Act or Section 20(a) 20 of the Exchange Act, Act against any and all loss, liability, claim, damage or damage, expense or liability (including all expenses reasonably incurred in investigatingaction, preparing joint or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such Holder, or such Holder's successors or assigns, for specific inclusion in such Registration Statement several to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify foregoing indemnity from the Company as set forth to the Holders, but only with respect to statements or omissions made in the Registration Statement (or any amendment thereto) or a preliminary prospectus or the prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with information furnished in writing by such Holder to the Company expressly for use in the Registration Statement (or any amendment thereto). The indemnity contained in this Section 7 8.4(e) is in addition to any liability which any Holder may otherwise have to the Company or any of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreementits directors, officers or controlling persons.
(f) Promptly after receipt by an indemnified party under this Section 8.4 of notice of any claim, threatened claim or the commencement of any action, the indemnified party shall, if a claim in respect thereof is to be made against an indemnifying party under this Section 8.4, notify the indemnifying party in writing of the claim, threatened claim or the commencement of that action; provided, however, that the failure to notify an indemnifying party shall not relieve such indemnifying party from any liability which it may have to an indemnified party otherwise than under this Section 8.4. If any such claim or action shall be brought against an indemnified party, and it shall notify the indemnifying party thereof, the indemnifying party shall be entitled to participate therein, and to the extent that it wishes, jointly with any other similarly notified indemnified party, to assume the defense thereof with its counsel, who shall be reasonably satisfactory to the indemnified party. After notice from the indemnifying party to the indemnified party of its election to assume the defense of such claim, threatened claim or action, the indemnifying party shall not be liable to the indemnified party under this Section 8.4 for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof other than reasonable costs of investigation provided, however, that any indemnified party shall have the right to employ counsel to represent it and its controlling persons who may be subject to liability arising out of any claim in respect of which indemnity may be sought by such indemnified party against the Company under this Section 8.4 if, in the reasonable judgment of such indemnified party, it is necessary for it to be represented by separate counsel in order to avoid an actual or potential conflict of interest or if it shall have reasonably concluded that there may be defenses available to it, and its controlling persons different from or in addition to those available to the Company, and in either such event the reasonable fees and expenses of such separate counsel shall be paid by the Company. An indemnifying party shall not be liable for any settlement of any action or claims effected without its written consent (which consent shall not unreasonably be withheld).
(g) Nothing contained in this Agreement shall be construed as requiring any Holder the Holder(s) to exercise the their Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(gh) The Company shall not permit the inclusion of any securities other than the Warrant Shares to be included in any registration statement filed pursuant to Section 8.3 hereof, or file any other registration statement subsequent to the receipt of any notice pursuant to Section 8.3 hereof and until 90 days after the effectiveness of a registration statement filed pursuant to Section 8.3 hereof, without the prior written consent of the Holders of the Warrants and Warrant Shares representing a Majority of such securities.
(i) In connection with any registration statement filed pursuant to Section 8.2 hereof, the Company shall furnish to each Holder participating in any offering a signed counterpart, addressed to such Holder an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and a "cold comfort" letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, and are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(j) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(k) The Company shall deliver promptly deliver to each Holder participating in the offering requesting the correspondence and memoranda described below, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to registration statement and permit each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter underwriters to do such investigation, investigation upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. NASD. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.
(l) The Company shall enter into an underwriting agreement with the managing underwriters selected for such underwriting by Holders holding a Majority of the Warrant Shares requested to be included in such underwriting. Such agreement shall be satisfactory in form and substance to the Company, each Holder and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Shares and may, at their option, require that any or all the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders and their intended methods of distribution.
(m) For purposes of this Agreement, the term "Majority" in reference to the Holders of the Warrants or Warrant Shares, shall mean in excess of fifty percent (50%) of the then outstanding Warrants or Warrant Shares that are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith or have not been resold to the public pursuant to a registration statement filed with the SEC under the Act.
Appears in 1 contract
Samples: Warrant Agreement (Just Toys Inc)
Covenants of the Company With Respect to Registration. The In connection with any registration under Section 7.2 or 7.3 hereof, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than a registration statement within thirty (30) business days following of receipt of any demand therefor, shall use its best efforts to have any such Registration Statement registration statements declared effective at the earliest possible time, and shall furnish each holder of Registrable Holder desiring to sell Warrant Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costscosts (excluding fees and expenses of Holder(s)' counsel and any underwriting or selling commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. 7.2 and 7.4.(a7.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. The Holder(s) will pay all costs, fees and expenses in connection with any registration statement filed pursuant to Section 7.3(c). If the Company shall fail to comply with the provisions of Section 7.4(a), the Company shall, in addition to any other equitable or other relief available to the Holder(s), be liable for any or all incidental or special damages sustained by the Holder(s) requesting registration of their Warrant Securities.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder the Holder(s) of the Registrable Warrant Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the The Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify each of the Underwriters as set forth contained in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.
(e) Any holder The Holder(s) of Registrable the Warrant Securities to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such Holder, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement registration statement to the same extent and with the same effect as the provisions contained in Section 7 of the Underwriting Agreement pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting AgreementCompany.
(f) Nothing contained in this Agreement shall be construed as requiring any Holder the Holder(s) to exercise the their Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(g) The Company shall not permit the inclusion of any securities other than the Warrant Securities to be included in any registration statement filed pursuant to Section 7.3 hereof, or permit any other registration statement to be or remain effective during the effectiveness of a registration statement filed pursuant to Section 7.3 hereof, without the prior written consent of the Holders of the Warrants and Warrant Securities representing a Majority of such securities.
(h) The Company shall furnish to each Holder participating in the offering and to each underwriter, if any, a signed counterpart, addressed to such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the under-writing agreement), and (ii) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and. the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement. The Company shall deliver promptly deliver to each Holder participating in the offering requesting the correspondence and memoranda described below and to the managing underwriters, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to registration statement and permit each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter underwriters to do such investigation, investigation upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"). Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.
(k) The Company shall enter into an underwriting agreement with the managing underwriters selected for such underwriting by Holders holding a Majority of the Warrant Securities requested to be included in such underwriting, which may be the Representatives, or either of them. Such agreement shall be satisfactory in form and substance to the Company, each Holder and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holder(s) shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Securities and may, at their option, require that any or all the representations, warranties and covenant s of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holder. Such Holder shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holder and their intended methods of distribution.
(1) In addition to the Warrant Securities, upon the written request therefor by any Holder(s), the Company shall include in the registration statement any other securities of the Company held by such Holder(s) as of the date of filing of such registration statement, including without limitation restricted shares of Common Stock, options, warrants or any other securities convertible into shares of Common Stock.
(m) For purposes of this Agreement, the term "Majority" in reference to the Holders of Warrants or Warrant Securities, shall mean in excess of fifty percent (50%) of the then outstanding Warrants or Warrant Securities that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith and (ii) have not been resold to the public pursuant to a registration statement filed with the Commission under the Act.
Appears in 1 contract
Covenants of the Company With Respect to Registration. The In ----------------------------------------------------- connection with any registration under Section 7.2 or 7.3 hereof, the Company ----------- covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than thirty a registration statement within sixty (3060) business days following of receipt of any demand therefor, shall use its best efforts to have any such Registration Statement registration statements declared effective at the earliest possible time, and shall furnish each holder of Registrable Holder desiring to sell Warrant Securities such number of prospectuses as shall reasonably be requested. Such Registration Statement shall include the Additional Warrants and the Warrant Shares issuable upon exercise of the Additional Warrants irrespective of whether any Additional Warrants have been issued at the time of the filing of such Registration Statement, unless the Company shall have attained $24,000,000 in revenues during the period from September 11, 1997 to November 30, 1998.
(b) The Company shall pay all costscosts (excluding fees and expenses of Holder(s) counsel and any underwriting or selling commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. 7.2 and 7.4.(a7.3(a) hereof -------- including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.4(a), the Company shall, in addition to any other -------- equitable or other relief available to the Holder(s), be liable for any or all incidental, special and consequential damages and damages due to loss of profit sustained by the Holder(s) requesting registration of their Warrant Securities.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolder (s) , provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder the Holder(s) of the Registrable Warrant Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Act or Section 20(a20 (a) of the Securities Exchange Act of 1934, as amended ("Exchange Act")) , against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has had agreed to indemnify the Underwriters as set forth Placement Agent contained in Section 7 10 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.
(e) Any holder of Registrable Securities to be sold pursuant to a Registration Statement, and such Holder's successors and assigns, shall severally, and not jointly, indemnify, the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such Holder, or such Holder's successors or assigns, for specific inclusion in such Registration Statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.
(f) Nothing contained in this Agreement shall be construed as requiring any Holder to exercise the Warrants held by such Holder prior to the initial filing of any Registration Statement or the effectiveness thereof.
(g) The Company shall promptly deliver copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.Sales ----------
Appears in 1 contract
Covenants of the Company With Respect to Registration. The In connection with any registrations under Sections 7(a) and 7(b) hereof, the Company covenants and agrees as follows:
(a1) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than thirty a registration statement within forty-five (3045) business calendar days following of receipt of any demand therefortherefor pursuant to section 7(a); provided, however, that the Company shall not be required to produce audited or unaudited financial statements for any period prior to the date such financial statements are required to be filed in a report on Form 20-F. The Company shall use its best efforts to have any such Registration Statement registration statement declared effective at the earliest possible time, and shall furnish each holder of Holder desiring to sell Registrable Securities such number of prospectuses as shall reasonably be requested.
(b2) The Company shall pay all costscosts (excluding fees and expenses of Holders' counsel and any underwriting discounts or selling fees, expenses or commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements any registration statement filed pursuant to Sections 7.3. 7(a) and 7.4.(a7(b) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7(c), the Company shall, in addition to any other equitable or other relief available to the Holders, be liable for any or all incidental and special damages and damages due to loss of profit sustained by the Holders requesting registration of their Registrable Securities.
(c3) The Company will take all necessary action which may be required in qualifying to qualify or registering register the Registrable Securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolders, provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d4) The Company shall indemnify any holder the Holders of the Registrable Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Securities Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Securities Act, the Exchange Act or otherwise, arising from such registration statement statement, but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth Underwriter contained in Section 7 8 of the Underwriting Agreement Agreement, and the Holders shall indemnify the Company to provide for just the same extent and equitable contribution with the same effect as set forth the provisions pursuant to which the Underwriter has agreed to indemnify the Company contained in Section 8 of the Underwriting Agreement.
(e5) Any holder The Holders of the Registrable Securities to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Securities Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such HolderHolders, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement registration statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth contained in Section 8 of the Underwriting AgreementAgreement pursuant to which the Underwriter has agreed to indemnify the Company.
(f6) Nothing contained in this Agreement shall be construed as requiring any Holder the Holders to exercise their Underwriter's Warrants (or the Warrants held by such Holder purchasable upon exercise thereof) prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(g7) The Company shall not be entitled to include any securities other than the Registrable Securities in any registration statement filed pursuant to Section 7(a) hereof without the prior written consent of the Holders of a Majority of the Registrable Securities.
(8) The Company shall furnish to a designated representative of the Holders participating in the offering and to each underwriter, if any, a signed counterpart, addressed to such Holder or underwriter of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and if such registration relates to an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration relates to an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement (the "Accountants"), in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of the accountants' "cold comfort" letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in "cold comfort" letters, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in "cold comfort" letters delivered to underwriters in underwritten public offerings of securities.
(9) The Company shall as soon as practicable after the effective date of the registration statement make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Securities Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(10) The Company shall deliver promptly deliver to each Holder participating in the offering requesting the correspondence described below and any managing underwriter copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff Accountants with respect to the Registration Statement to registration statement and permit each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"). Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditorsrepresentatives of the Accountants, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.
(11) The Company shall enter into an underwriting agreement with the managing underwriter selected for such underwriting by Holders holding a Majority of the Registrable Securities requested to be included in such underwriting; provided, however, that (i) such managing underwriter shall be reasonably acceptable to the Company, except that in connection with an offering for which the Holders have piggyback rights, the Company shall have the sole right to select the managing underwriter, and (ii) the Holders shall be responsible for any selling fees or commissions in connection with such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, a Majority of such Holders and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders and their intended methods of distribution.
Appears in 1 contract
Samples: Underwriter's Warrant Agreement (Med Emerg International Inc)
Covenants of the Company With Respect to Registration. The In connection with any registration under Section 7.1 hereof, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than thirty a registration statement within forty- five (3045) business days following of receipt of any demand therefor, shall use its best efforts to have any such Registration Statement registration statements declared effective at the earliest possible practicable time, and shall furnish each holder of Holder desiring to sell Registrable Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costs, expenses and fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the excluding fees and expenses of Holder(s)' counsel retained by the holders of the Registrable Securities) and any underwriting or selling commissions), in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. and 7.4.(a) Section 7.1 hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.2(a), the Company shall, in addition to any other equitable or other relief available to the Holder(s), extend the exercise period of the Warrants by such number of days as shall equal the delay caused by the Company's failure.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolder(s); provided that, provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder the Holder(s) of the Registrable Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange ActEXCHANGE ACT"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement to the same extent and with the same effect as the provisions pursuant to except for matters for which the Company has agreed to indemnify the Underwriters as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreementis indemnified under subsection 7.2(e) hereof.
(e) Any holder The Holder(s) of the Registrable Securities to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such Holder, or such Holder's successors or assigns, for specific inclusion in such Registration Statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.
(f) Nothing contained in this Agreement shall be construed as requiring any Holder to exercise the Warrants held by such Holder prior to the initial filing of any Registration Statement or the effectiveness thereof.
(g) The Company shall promptly deliver copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.liability
Appears in 1 contract
Covenants of the Company With Respect to Registration. The In connection with any registrations under Sections 7(b) and 7(c) hereof, the Company covenants and agrees as follows:
(a1) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than thirty a registration statement within ninety (3090) business days following of receipt of any demand therefor; provided, however, that the Company shall not be required to produce audited or unaudited financial statements for any period prior to the date such financial statements are required to be filed in a report on Form 10-K or Form 10-Q (or Form 10-KSB or Form 10-QSB), as the case may be. The Company shall use its best efforts to have any such Registration Statement registration statements declared effective at the earliest possible time, and shall furnish each holder of Registrable Securities Holder desiring to sell Shares such number of prospectuses as shall reasonably be requested.
(b2) The Company shall pay all costscosts (excluding fees and expenses of Holder(s)' counsel and any underwriting discounts or selling fees, expenses or commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements any registration statement filed pursuant to Sections 7.3. 7(b) and 7.4.(a7(c) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7(d) (1), the Company shall, in addition to any other equitable or other relief available to the Holder(s), be liable for any or all incidental, special and consequential damages and damages due to loss of profit sustained by the Holder(s) requesting registration of their Warrant Shares.
(c3) The Company will take all necessary and reasonable action which may be required in qualifying to qualify or registering register the Registrable Securities Warrant Shares included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d4) The Company shall indemnify any holder the Holder(s) of the Registrable Securities Warrant Shares to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the 1933 Act or Section 20(a) of the Securities Exchange Act of 1934, as amended 1934 (the "Exchange Act"), against all losslosses, claimclaims, damagedamages, expense expenses or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the 1933 Act, the Exchange Act or otherwise, arising from such registration statement statement, but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth Underwriter contained in Section 7 6 of the Underwriting Agreement Agreement, and the Holder(s) shall indemnify the Company to provide for just the same extent and equitable contribution with the same effect as set forth the provisions pursuant to which the Underwriter has agreed to indemnify the Company contained in Section 8 6 of the Underwriting Agreement.
(e5) Any holder The Holder(s) of Registrable Securities the Warrant Shares to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each personpersons, if any, who controls the Company within the meaning of Section 15 of the 1933 Act or Section 20(a) of the Exchange Act, against all losslosses, claimclaims, damage or expense damages, expenses or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the 1933 Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such HolderHolders, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement registration statement to the same extent and with the same effect as the provisions contained in Section 6 of the Underwriting Agreement pursuant to which the Underwriters have Underwriter has agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting AgreementCompany.
(f6) Nothing contained in this Agreement shall be construed as requiring any Holder the Holder(s) to exercise the their Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(g7) If the manner of distribution proposed by the holders of the Warrants and the Warrant Shares is an underwriting, the Company shall furnish to each Holder participating in the offering and to each underwriter, a signed counterpart, addressed to such Holder or underwriter of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(8) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within the first full four fiscal quarters following the effective date, make "generally available to its security holders" (within the meaning of Rule 158 under the 1933 Xxx) xx earnings statement (which need not be audited) complying with Section 11(a) of the 1933 Xxx.
(9) The Company shall deliver promptly deliver to one designated representative for each Holder participating in the offering requesting the correspondence described below and any managing underwriter, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to registration statement and permit each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities DealersDealers Regulation, Inc. ("NASDR"). Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.
(10) In connection with an offering for which the Holders have demand rights, the Company shall enter into an underwriting agreement with the managing underwriter selected for such underwriting by Holders holding a Majority of the Shares requested to be included in such underwriting. In connection with an offering for which the Holders have piggyback rights, the Company shall have the sole right to select the managing underwriter. Such underwriting agreement shall be satisfactory in form and substance to the Company, a Majority of such Holders and such managing underwriter, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Shares and may, at their option, require that any or all the representations, warranties and covenants of the Company to or for the benefit of such underwriter shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriter except as they may relate to such Holders their ownership and their intended methods of distribution.
Appears in 1 contract
Samples: Underwriter's Warrant Agreement (All American Food Group Inc)
Covenants of the Company With Respect to Registration. The In connection with any registration under Section 7.1 or 7.2 hereof, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than a registration statement within thirty (30) business days following of receipt of any demand therefor, shall use its best efforts to have any such Registration Statement registration statements declared effective at the earliest possible time, and shall furnish each holder of Registrable Holder desiring to sell Warrant Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costscosts (excluding fees and expenses of Holder(s)' counsel and any underwriting or selling commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. 7.1 and 7.4.(a7.2(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. The Holder(s) will pay all costs, fees and expenses in connection with any registration statement filed pursuant to Section 7.2(c). If the Company shall fail to comply with the provisions of Section 7.3(a), the Company shall, in addition to any other equitable or other relief available to the Holder(s), be liable for any or all incidental or special damages sustained by the Holder(s) requesting registration of their Warrant Securities.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder the Holder(s) of the Registrable Warrant Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holder within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreementstatement.
(e) Any holder The Holder(s) of Registrable the Warrant Securities to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such Holder, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreementregistration statement.
(f) Nothing contained in this Agreement shall be construed as requiring any Holder the Holder(s) to exercise the their Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(g) The Company shall not permit the inclusion of any securities other than the Warrant Securities to be included in any registration statement filed pursuant to Section 7.2 hereof, without the prior written consent of the Holder(s) of the Warrants and Warrant Securities representing a Majority of such securities.
(h) The Company shall furnish to each Holder participating in the offering and to each underwriter, if any, a signed counterpart, addressed to such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(j) The Company shall deliver promptly deliver to each Holder participating in the offering requesting the correspondence and memoranda described below and to the managing underwriters, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to registration statement and permit each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter underwriters to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"). Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.
(k) The Company shall enter into an underwriting agreement with the managing underwriters selected for such underwriting by Holder(s) holding a Majority of the Warrant Securities requested to be included in such underwriting, which may be Ryan, Beck. Such agreement shall be satisfactory in form and substancx xx txx Xompany, each Holder and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holder(s) shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Securities and may, at their option, require that any or all the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holder(s). Such Holder(s) shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holder(s) and their intended methods of distribution.
(l) In addition to the Warrant Securities, upon the written request therefor by any Holder(s), the Company shall include in the registration statement any other securities of the Company held by such Holder(s) as of the date of filing of such registration statement, including without limitation restricted shares of Common Stock, options, warrants or any other securities convertible into shares of Common Stock.
(m) For purposes of this Agreement, the term "Majority" in reference to the Holder(s) of Warrants or Warrant Securities, shall mean in excess of fifty percent (50%) of the then outstanding Warrants or Warrant Securities that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith and (ii) have not been resold to the public pursuant to a registration statement filed with the Commission under the Act.
Appears in 1 contract
Covenants of the Company With Respect to Registration. The In connection with any registration under Section (h) or (i) hereof, the Company covenants and agrees as follows:
(ai) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than thirty a registration statement within sixty (3060) business days following of receipt of any demand therefor, shall use its best efforts to have any such Registration Statement registration statement declared effective at the earliest possible time, and shall furnish each holder of Registrable Securities Holder desiring to sell Warrant Stock such number of prospectuses as shall reasonably be requested.
(bii) The Company shall pay all costscosts (excluding fees and expenses of Holder(s)' counsel and any underwriting or selling commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. (h), (i) and 7.4.(a0) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section (j)(i), the Company shall, in addition to any other equitable or other relief available to the Holder(s), extend the Exercise Period by such number of days as shall equal the delay caused by the Company's failure.
(ciii) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Warrant Stock included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(div) The Company shall indemnify any holder the Holder(s) of the Registrable Securities Warrant Stock to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), from and against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth Underwriter contained in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.
(ev) Any holder The Holder(s) of Registrable Securities the Warrant Stock to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such HolderHolders, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement registration statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth contained in Section 7 of the Underwriting Agreement and pursuant to provide for just and equitable contribution as set forth in Section 8 of which the Underwriting AgreementUnderwriter has agreed to indemnify the Company.
(fvi) Nothing contained in this Agreement The Holder(s) shall be construed as requiring any Holder to exercise the their Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(gvii) The Company shall not permit the inclusion of any securities other than the Warrant Stock to be included in any registration statement filed pursuant to Section (i) hereof, or permit any other registration statement to be or remain effective during the effectiveness of a registration statement filed pursuant to Section (i) hereof, other than a secondary offering of equity securities by the Company, without the prior written consent of the Holders of the Warrants and Warrant Stock representing a Majority of such securities (assuming an exercise of all the Warrants underlying the Warrants).
(viii) The Company shall furnish to each Holder participating in the offering and to each underwriter, if any, a signed counterpart, addressed to such Holder or underwriter, of (x) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (y) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(ix) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(x) The Company shall deliver promptly deliver to each Holder participating in the offering requesting the correspondence and memoranda described below and to the managing underwriters, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to registration statement and permit each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"). Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.
(xi) The Company shall enter into an underwriting agreement with the managing underwriters, which may be the Underwriter. Such agreement shall be satisfactory in form and substance to the Company, and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter; provided however, that no Holder shall be required to make any representations, warranties or covenants or grant any indemnity to which it shall object in any such underwriting agreement. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Securities and may, at their option, require that any or all the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders and their intended methods of distribution.
(xii) For purposes of this Agreement, the term "Majority" in reference to the Holders of Warrants or Warrant Stock, shall mean in excess of fifty (50%) of the then outstanding Warrants or Warrant Stock that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith or (ii) have not been resold to the public pursuant to a registration statement filed with the Commission under the Act.
Appears in 1 contract
Covenants of the Company With Respect to Registration. The In connection with any registrations under Sections 7(b) and 7(c) hereof, the Company covenants and agrees as follows:
(a1) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than thirty a registration statement within forty-five (3045) business calendar days following of receipt of any demand therefortherefor pursuant to Section 7(b); provided, however, that the Company shall not be required to produce audited or unaudited financial statements for any period prior to the date such financial statements are required to be filed in a report on Form 10-KSB or Form 10-QSB, as the case may be. The Company shall use its best efforts to have any such Registration Statement registration statement declared effective at the earliest possible time, and shall furnish each holder of Registrable Holder desiring to sell Underwriters' Securities such number of prospectuses as shall reasonably be requested.
(b2) The Company shall pay all costscosts (excluding fees and expenses of Holders' counsel and any underwriting discounts or selling fees, expenses or commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements the first registration statement filed pursuant to Sections 7.3. 7(b) and 7.4.(a7(c) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses.
(c3) The Company will take all necessary action which may be required in qualifying use its best efforts to qualify or registering register the Registrable Underwriters' Securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolders, provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d4) The Company shall indemnify any holder the Holders of the Registrable Underwriters' Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement statement, but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth contained in Section 8 of the Underwriting Agreement.
(e5) Any holder The Holders of Registrable the Underwriters' Securities to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such HolderHolders, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement registration statement to the same extent and with the same effect as the provisions contained in Section 8 of the Underwriting Agreement pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting AgreementCompany.
(f6) Nothing contained in this Agreement shall be construed as requiring any Holder the Holders to exercise the their Underwriters' Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(g7) The Company shall not be entitled to include any securities other than the Underwriters' Securities in any registration statement filed pursuant to Section 7(b) hereof without the prior written consent, which consent shall not be unreasonably withheld, of the Holders of the Underwriters' Warrants and Underwriters' Securities representing a Majority of such securities (assuming exercise of all of the Underwriters' Warrants).
(8) The Company shall furnish to a designated representative of the Holders participating in the offering and to each underwriter, if any, a signed counterpart, addressed to the Company or the underwriter of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) if such registration includes an underwritten public offering a copy of the "cold comfort" letter dated the effective date of such registration statement signed by each independent public accountant who has issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letters. with respect to events subsequent to the date of such financial statements, as are duly covered in opinions of issuer's counsel and in accountants' letters, with respect to customary events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(9) The Company shall as soon as practicable after the effective
(10) The Company shall deliver promptly deliver to each Holder participating in the offering requesting the correspondence described below and any managing underwriter copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to registration statement and permit each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"). Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.
(11) The Company shall enter into an underwriting agreement with the managing underwriter selected for such underwriting by Holders holding a Majority of the Underwriters' Securities requested to be included in such underwriting, provided, however that (i) such managing underwriter shall be reasonably acceptable to the Company, except that in connection with an offering for which the Holders have piggyback rights, the Company shall have the sole right to select the managing underwriter or underwriters, and (ii) the Holders shall
Appears in 1 contract
Samples: Underwriters' Warrant Agreement (Rockwell Medical Technologies Inc)
Covenants of the Company With Respect to Registration. The In connection with any registration under Sections 9.2 or 9.3 hereof, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than thirty a registration statement within ninety (3090) business days following of receipt of any demand therefor, shall use its best efforts and to have any such Registration Statement registration statements declared effective at the earliest possible time, and shall furnish each holder of Registrable Securities Holder desiring to sell Warrant Shares such number of prospectuses as shall reasonably be requestedrequested and shall maintain the effectiveness of such registration statement for a period of at least twelve (12) months. Notwithstanding the foregoing sentence, the Company shall be entitled one time only to postpone the filing of any registration statement otherwise required to be prepared and filed by it pursuant to this Section 9.4(a) if the Company is (i) publicly committed to a self-tender or exchange offer and the filing of a registration statement would cause a violation of Regulation M under the Securities Exchange Act of 1934, as amended (the "Exchange Act") or (ii) involved in negotiating or consummating an acquisition or merger which would make such registration impracticable, in either of which cases the filing of the registration statement may be delayed for a period of up to 60 days. The Company shall promptly deliver to the Holders a written notice of postponement, which notice shall specifically set forth the reason for such postponement. Following the delivery of such notice, the Company shall be required to file the postponed registration statement upon the earlier of (i) the consummation or termination, as applicable, of the event requiring such postponement (ii) 60 days after delivery of the aforementioned notice.
(b) The Company shall pay all costscosts (excluding fees and expenses of Holder(s)' counsel and any underwriting or selling commissions, and excluding roadshow expenses if the only shares to be registered in such Registration Statement are Warrant Shares), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. 9.2 and 7.4.(a9.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. The Holder(s) will pay all costs, fees and expenses (including those of the Company)in connection with the registration statement filed pursuant to Section 9.3(c).
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Warrant Shares included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder of the Registrable Securities Holder(s)of the Warrant Shares to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify each of the Underwriters as set forth contained in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.
(e) Any holder The Holder(s) of Registrable Securities the Warrant Shares to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished in writing by or on behalf of such HolderHolders, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement registration statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth contained in Section 7 of the Underwriting Agreement and pursuant to provide for just and equitable contribution as set forth in Section 8 of which the Underwriting AgreementUnderwriter has agreed to indemnify the Company.
(f) Nothing contained in this Agreement shall be construed as requiring any Holder the Holder(s) to exercise the Warrants held by such Holder their Underwriter's Warrant prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(g) The Company shall promptly deliver copies not permit the inclusion of all correspondence between any securities other than the Commission Warrant Shares to be included in any registration statement filed pursuant to Section 9.3 hereof, or permit any other registration statement to be or remain effective during the effectiveness of a registration statement filed pursuant to Section 9.3 hereof (other than registration statements filed prior to an exercise of registration rights by a Holder of Underwriter's Warrants and/or Warrant Shares pursuant to Section 9.2 hereof), without the prior written consent of Xxxxxxxx or as otherwise required by the terms of any existing registration rights granted prior to the date of this Agreement by the Company to the holders of any of the Company's securities.
(h) In the event of an underwritten offering, the Company shall furnish to each Holder participating in the offering and to each underwriter a signed counterpart, addressed to such Holder or underwriter, of (i) an opinion of counsel to the Company, its counsel or auditors dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and all memoranda relating to discussions with (ii) a "cold comfort" letter dated the Commission or its staff effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the Registration Statement to each Holder prospectus included therein) and, in the case of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance noticeaccountants' letter, with respect to information contained events subsequent to the date of such financial statements, as are customarily covered in or omitted from opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable after the Registration Statement as it deems reasonably necessary to comply with applicable securities laws or rules effective date of the National Association of Securities Dealersregistration statement, Inc. Such investigation shall include access to booksand in any event within 15 months thereafter, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.make "generally available to
Appears in 1 contract
Samples: Underwriter's Warrant Agreement (Infinite Technology Group LTD)
Covenants of the Company With Respect to Registration. The In connection with any registration under Section 7.2 or 7.3 hereof, the Company covenants and agrees as follows:
(a) In connection with any registration under Subject to Section 7.4 hereof7.3, the Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than a registration statement within thirty (30) business days following of receipt of any demand therefor, shall use its best efforts to have any such Registration Statement registration statements declared effective at the earliest possible timeas soon as reasonably practicable, and shall furnish each holder of Registrable Holder desiring to sell Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costscosts (excluding fees and expenses of Holder(s)' counsel and any underwriting or selling commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. 7.2 and 7.4.(a7.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees (not to exceed $35,000) and expenses. If the Company shall fail to comply with the provisions of Section 7.4(a), the Company shall, in addition to any other equitable or other relief available to the Holder(s) be liable for any or all damages sustained by the Holder(s) requesting registration of their Securities.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolder(s), provided that the Company shall not be obligated to (i) execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdictionjurisdiction and (ii) "blue sky" Securities only in those states where the Company's initial public offering was registered under the state securities or blue sky laws.
(d) The Company shall indemnify any holder the Holder(s) of the Registrable Securities Warrant to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify each of the Underwriters as set forth contained in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.
(e) Any holder The Holder(s) of Registrable the Securities to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors directors, and its counsel and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such HolderHolders, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement registration statement to the same extent and with the same effect as the provisions contained in Section 7 of the Underwriting Agreement pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting AgreementCompany.
(f) Nothing contained in this Agreement shall be construed as requiring any Holder the Holder(s) to exercise the their Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(g) The Company shall furnish to each Holder participating in the offering and to each underwriter, if any, a signed counterpart, addressed to such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(h) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(i) The Company shall deliver promptly deliver to each Holder participating in the offering requesting the correspondence and memoranda described below and to the managing underwriters, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to registration statement and permit each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter underwriters to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"). Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request. Prior to any such investigation, a Holder shall execute a confidentiality agreement with the Company.
(j) The Company shall enter into an underwriting agreement with the managing underwriters selected for such underwriting by Holders holding a Majority of the Securities requested to be included in such underwriting, which may be the Representative. Such agreement shall be satisfactory in form and substance to the Company, each Holder and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Securities and may, at their option, require that any or all the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders and their intended methods of distribution.
(k) For purposes of this Agreement, the term "Majority" in reference to the Holders of Representative's Warrants or Securities, shall mean in excess of fifty percent (50%) of the then outstanding Representative's Warrants or Securities that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith and (ii) have not been resold to the public pursuant to a registration statement filed with the Commission under the Act.
Appears in 1 contract
Samples: Representative's Warrant Agreement (Translation Group LTD)
Covenants of the Company With Respect to Registration. The In connection with any registration under Section 9.2 or 9.3 hereof, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than thirty a registration statement within ninety (3090) business days following of receipt of any demand therefor, shall use its best efforts and to have any such Registration Statement registration statements declared effective at the earliest possible time, and shall furnish each holder of Registrable Securities Holder desiring to sell Warrant Shares such number of prospectuses as shall reasonably be requested. The Company shall also file such applications and other documents as may be necessary to permit the sale of the Warrant Shares to the public during the Registration Period in those states to which the Company and the holders of the Warrants and/or Warrant Shares shall mutually agree.
(b) The Company shall pay all costscosts (excluding fees and expenses of Holder(s)' counsel and any underwriting or selling commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. 9.2 and 7.4.(a9.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses.. The Holder(s) will pay all costs, fees and expenses in connection with the registration statement filed pursuant to Section 9.3(c)
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Warrant Shares included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder the Holder(s) of the Registrable Securities Warrant Shares to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holder(s) within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth in Section 7 of the Underwriting Agreement and statement.
(e) In order to provide for just and equitable contribution as set forth under the Act in Section 8 any case in which (i) any Holder of the Underwriting Warrant Shares or controlling person thereof makes a claim for indemnification but it is judicially determined (by the entry of a final judgment or decree by a court of competent jurisdiction and the expiration of time to appeal or the denial of the last right of appeal) that such indemnification may not be enforced in such case notwithstanding the fact that the express provisions of Section 9.4(d) hereof provide for indemnification in such case or (ii) contribution under the Act may be required on the part of any Holder of the Warrant Shares, or controlling person thereof, then the Company, any such Holder of the Warrant Shares, or controlling person thereof shall contribute to the aggregate losses, claims, damages or liabilities to which they may be subject (which shall, for all purposes of this Agreement, include, but not be limited to, all costs of defense and investigation and all attorneys fees), in either such case (after contribution from others) on the basis of relative fault as well as any other relevant equitable considerations. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or a Holder of Warrant Shares, or controlling person thereof on the other and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and such Holders of such securities and such controlling persons agree that it would not be just and equitable if contribution pursuant to this Section 10.4(e) were determined by pro rata allocation or by any other method which does not take account of the equitable considerations referred to in this Section 9.4(e). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this Section 9.4(e) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
(ef) Any holder The Holder(s) of Registrable Securities the Warrant Shares to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all any loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished in writing, by or on behalf of such HolderHolders, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreementregistration statement.
(fg) Nothing contained in this Agreement shall be construed as requiring any Holder the Holder(s) to exercise the their Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(gh) The Company shall promptly deliver copies not permit the inclusion of all correspondence between any securities other than the Commission Warrant Shares to be included in any registration statement filed pursuant to Section 10.3 hereof, or permit any other registration statement (other than a registration statement on Form S-4 or S-8) to be or remain effective during a ninety (90) day period following the effective date of a registration statement filed pursuant to Section 9.3 hereof, without the prior written consent of the Holder(s) of the Warrants and Warrant Shares representing a Majority of such securities or as otherwise required by the terms of any existing registration rights granted prior to the date of this Agreement by the Company to the holders of any of the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement 's securities.
(i) The Company shall furnish to each Holder of Registrable Securities included for registration participating in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda the offering and to the managing each underwriter, if any, a signed counterpart, addressed to such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the offering closing under the underwriting agreement), and (ii) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a "cold comfort" letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in connection such registration statement, in each case covering substantially the same matters with which respect to such Holder's Registrable Securities are being registered registration statement (and shall permit each the prospectus included therein) and, in the case of such Holder and managing underwriter to do such investigation, upon reasonable advance noticeaccountants' letter, with respect to information events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(j) The Company shall enter into an underwriting agreement with the managing underwriters selected for such underwriting by Holders holding a Majority of the Warrant Shares requested to be included in such underwriting. Such agreement shall be satisfactory in form and substance to the Company, each Holder and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holder(s) shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Shares and may, at their option, require that any or omitted from the Registration Statement as it deems reasonably necessary to comply with applicable securities laws or rules all of the National Association of Securities Dealersrepresentations, Inc. Such investigation shall include access to books, records warranties and properties and opportunities to discuss the business covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holder(s). Such Holder(s) shall not be required to make any representations or warranties to or agreements with its officers and independent auditors, all the Company or the underwriters except as they may relate to such reasonable extent Holder(s) and at such reasonable times and as often as any such Holder their intended methods of distribution.
(k) For purposes of this Agreement, the term "Majority" in reference to the Warrants or managing underwriter Warrant Shares, shall reasonably requestmean in excess of fifty percent (50%) of the then outstanding Warrants or Warrant Shares that (i) are not held by the Company, or (ii) have not been resold to the public pursuant to a registration statement filed with the Commission under the Act or Rule 144 promulgated under the Act.
Appears in 1 contract
Covenants of the Company With Respect to Registration. The In connection with any registrations under Sections 7(b) and 7(c) hereof, the Company covenants and agrees as follows:
(a1) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than thirty a registration statement within forty-five (3045) business days following of receipt of any demand therefor; provided, however, that the Company shall not be required to produce audited or unaudited financial statements for any period prior to the date such financial statements are required to be filed in a report on Form 10-K or Form 10-Q (or Form 10-KSB or Form 10-QSB), as the case may be. The Company shall use its best efforts to have any such Registration Statement registration statements declared effective at the earliest possible time, and shall furnish each holder of Registrable Securities Holder desiring to sell Shares such number of prospectuses as shall reasonably be requested.
(b2) The Company shall pay all costscosts (excluding fees and expenses of Holder(s)' counsel and any underwriting discounts or selling fees, expenses or commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements any registration statement filed pursuant to Sections 7.3. 7(b) and 7.4.(a7(c) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7(d) (1), the Company shall, in addition to any other equitable or other relief available to the Holder(s), be liable for any or all incidental, special and consequential damages and damages due to loss of profit sustained by the Holder(s) requesting registration of their Warrant Units (and/or the Common Stock, Class A Warrants and Class B Warrants underlying same).
(c3) The Company will take all necessary action which may be required in qualifying to qualify or registering register the Registrable Securities Warrant Units (and underlying securities) included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d4) The Company shall indemnify any holder the Holder(s) of the Registrable Securities Warrant Units (and underlying securities) to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the 1933 Act or Section 20(a) of the Securities Exchange Act of 1934, as amended 1934 (the "Exchange Act"), against all losslosses, claimclaims, damagedamages, expense expenses or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the 1933 Act, the Exchange Act or otherwise, arising from such registration statement statement, but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth contained in Section 8 of the Underwriting Agreement, and the Holder(s) shall indemnify the Company to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company contained in Section 6 of the Underwriting Agreement.
(e5) Any holder The Holder(s) of Registrable Securities the Warrant Units (and/or underlying securities) to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each personpersons, if any, who controls the Company within the meaning of Section 15 of the 1933 Act or Section 20(a) of the Exchange Act, against all losslosses, claimclaims, damage or expense damages, expenses or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the 1933 Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such HolderHolders, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement registration statement to the same extent and with the same effect as the provisions contained in Section 6 of the Underwriting Agreement pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting AgreementCompany.
(f6) Nothing contained in this Agreement shall be construed as requiring any Holder the Holder(s) to exercise the their Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(g7) If the manner of distribution proposed by the holders of the Warrants and the Warrant Units is an underwriting, the Company shall furnish to each Holder participating in the offering and to each underwriter, a signed counterpart, addressed to such Holder or underwriter of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(8) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within the first full four fiscal quarters following the effective date, make "generally available to its security holders" (within the meaning of Rule 158 under the 0000 Xxx) an earnings statement (which need not be audited) complying with Section 11(a) of the 0000 Xxx.
(9) The Company shall deliver promptly deliver to each Holder participating in the offering requesting the correspondence described below and any managing underwriter, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to registration statement and permit each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities DealersDealers Regulation, Inc. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.
(10) In connection with an offering for which the Holders have demand rights, the Company shall enter into an underwriting agreement with the managing underwriter selected for such underwriting by Holders holding a Majority of the Shares requested to be included in such underwriting. In connection with an offering for which the Holders have piggyback rights, the Company shall have the sole right to select the managing underwriter. Such underwriting agreement shall be satisfactory in form and substance to the Company, a Majority of such Holders and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Units and may, at their option, require that any or all the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders their ownership and their intended methods of distribution.
Appears in 1 contract
Samples: Underwriters' Warrant Agreement (Noninvasive Medical Technologies Inc)
Covenants of the Company With Respect to Registration. The In --------- -- --- ------- ---- ------- -- ------------ connection with any registration under Sections 7(b) and 7(c) hereof, the Company covenants and agrees as follows:
(a1) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than a registration statement within thirty (30) business days following of receipt of any demand therefor, shall use its best efforts to have any such Registration Statement registration statements declared effective at the earliest possible time, and shall furnish each holder of Registrable Holder desiring to sell Warrant Securities such number of prospectuses as shall reasonably be requested.
(b2) The Company shall pay all costscosts (excluding fees and expenses of Holder(s)' counsel and any underwriting discounts or selling fees, expenses or commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements any registration statement filed pursuant to Sections 7.3. 7(b) and 7.4.(a7(c) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7(d)(1), the Company shall, in addition to any other equitable or other relief available to the Holder(s), be liable for any or all incidental, special and consequential damages and damages due to loss of profit sustained by the Holder(s) requesting registration of their Warrant Securities.
(c3) The Company will take all necessary action which may be required in qualifying to qualify or registering register the Registrable Warrant Securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d4) The Company shall indemnify any holder the Holder(s) of the Registrable Warrant Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth Underwriter contained in Section 7 8 of the Underwriting Agreement Agreement, and the Holder(s) shall indemnify the Company to provide for just the same extent and equitable contribution with the same effect as set forth the provisions pursuant to which the Underwriter has agreed to indemnify the Company contained in Section 8 of the Underwriting Agreement.
(e5) Any holder The Holder(s) of Registrable the Warrant Securities to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such HolderHolders, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement registration statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth contained in Section 8 of the Underwriting AgreementAgreement pursuant to which the Underwriter has agreed to indemnify the Company.
(f6) Nothing contained in this Agreement shall be construed as requiring any Holder the Holder(s) to exercise the their Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(g7) The Company shall not be entitled to include any securities other than the Warrant Securities in any registration statement filed pursuant to Section 7(b) hereof without the prior written consent of the Underwriter and the Holders of the Warrants and Warrant Securities representing a Majority of such securities (assuming exercise of all of the Warrants).
(8) The Company shall furnish to each Holder participating in the offering and to each underwriter, if any, a signed counterpart, addressed to such Holder or underwriter of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and if such registration includes an underwritten public offering, an opinion dated the date of the Closing under the underwriting agreement), and (ii) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the Closing under the underwriting agreement) signed by the independent public accounts who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letter, with respects to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(9) The Company shall as soon as practicable 11 after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(10) The Company shall deliver promptly deliver to each Holder participating in the offering requesting the correspondence described below and any managing underwriter copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to registration statement and permit each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"). Such investigation shall include access to books, records and properties and opportunities opportSecurityies to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.
(11) The Company shall enter into an underwriting agreement with the managing underwriter selected for such underwriting by Holders holding a Majority of the Warrant Securities requested to be included in such underwriting, except that in connection with an offering for which the Holders have piggyback rights, the Company shall have the sole right to select the managing underwriter. Such underwriting agreement shall be satisfactory in form and substance to the Company, a Majority of such Holders and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Securities and may, at their option, require that any or all the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders and their intended methods of distribution.
(12) For purposes of this Agreement, the term "Majority" in reference to the Holders of the Warrants or Warrant Securities, shall mean in excess of fifty percent (50%) of the then outstanding Warrants or Warrant Securities that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction there with, or (ii) have not been resold to the public pursuant to a registration statement filed with the Commission under the Act.
Appears in 1 contract
Covenants of the Company With Respect to Registration. The In connection with any registration under Sections 9.2 or 9.3 hereof, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than thirty a registration statement within one hundred and twenty (30120) business days following of receipt of any demand therefor, shall use its best efforts and to have any such Registration Statement registration statements declared effective at the earliest possible time, and shall furnish each holder of Registrable Securities Holder desiring to sell Warrant Shares such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costscosts (excluding fees and expenses of a single counsel for all Holders up to a maximum of $25,000 of legal fees and costs and any underwriting or selling commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. 9.2 and 7.4.(a9.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. The Holder(s) will pay all costs, fees and expenses (including those of the Company) in connection with the registration statement filed pursuant to Section 9.3(c).
(c) The Company will use its commercially reasonable efforts to take all necessary action which may be required in qualifying or registering the Registrable Securities Warrant Shares included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder the Holder(s) of the Registrable Securities Warrant Shares to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify each of the Underwriters as set forth contained in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.
(e) Any holder The Holder(s) of Registrable Securities the Warrant Shares to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such Holder, or such Holder's successors or assigns, for specific inclusion in such Registration Statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.may
(f) Nothing contained in this Agreement shall be construed as requiring any Holder the Holder(s) to exercise the Warrants held by such Holder their Representative's Warrant prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(g) The Company shall promptly deliver copies not permit the inclusion of all correspondence between any securities other than the Commission and Warrant Shares to be included in any registration statement filed pursuant to Section 9.3 hereof, or permit any other registration statement (other than a registration statement on Form S-4 or S-8) to be or remain effective during a ninety (90) day period following the effectiveness of a registration statement filed pursuant to Section 9.3 hereof, without the prior written consent of National Securities Corporation or as otherwise required by the terms of any existing registration rights granted prior to the date of this Agreement by the Company to the holders of any of the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement 's securities.
(h) The Company shall furnish to each Holder of Registrable Securities included for registration participating in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda the offering and to the managing each underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter a signed counterpart, addressed to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration includes an
(i) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(j) The Company shall enter into an underwriting agreement with the managing underwriter underwriters selected for such underwriting by Holders holding a Majority of the Warrant Shares requested to be included in such underwriting, which may be the Representative. Such agreement shall reasonably requestbe satisfactory in form and substance to the Company, each Holder and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Shares and may, at their option,
(k) For purposes of this Agreement, the term "Majority" in reference to the Representative's Warrants or Warrant Shares, shall mean in excess of fifty percent (50%) of the then outstanding Representative's Warrants or Warrant Shares that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith or (ii) have not been resold to the public pursuant to a registration statement filed with the Commission under the Act.
Appears in 1 contract
Samples: Representative's Warrant Agreement (Sonoma International Inc)
Covenants of the Company With Respect to Registration. The In connection with any registration under Sections 7(b) and 7(c) hereof, the Company covenants and agrees as follows:
(a1) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than a registration statement within thirty (30) business days following of receipt of any demand therefor, shall use its best efforts to have any such Registration Statement registration statements declared effective at the earliest possible time, and shall furnish each holder of Registrable Holder desiring to sell the Warrant Securities such number of prospectuses as shall reasonably be requested.
(b2) The Company shall pay all costscosts (excluding fees and expenses of Holder(s)' counsel and any underwriting discounts or selling fees, expenses or commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements the first registration statement filed pursuant to Sections 7.3. Section 7(b) and 7.4.(aany registration statement filed pursuant to Section 7(c) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7(d)(1), the Company shall, in addition to any other equitable or other relief available to the Holder(s), be liable for any or all incidental, special and consequential damages and damages due to loss of profit sustained by the Holder(s) requesting registration of their Warrant Securities.
(c3) The Company will take all necessary action which may be required in qualifying to qualify or registering register the Registrable Warrant Securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d4) The Company shall indemnify any holder the Holder(s) of the Registrable Warrant Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth Underwriter contained in Section 7 8 of the Underwriting Agreement Agreement, and the Holder(s) shall indemnify the Company to provide for just the same extent and equitable contribution with the same effect as set forth the provisions pursuant to which the Underwriter has agreed to indemnify the Company contained in Section 8 of the Underwriting Agreement.
(e5) Any holder The Holder(s) of Registrable the Warrant Securities to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such HolderHolders, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement registration statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth contained in Section 8 of the Underwriting AgreementAgreement pursuant to which the Underwriter has agreed to indemnify the Company.
(f6) Nothing contained in this Agreement shall be construed as requiring any Holder the Holder(s) to exercise the their Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(g7) The Company shall not be entitled to include any securities other than the Warrant Securities in any registration statement filed pursuant to Section 7(b) hereof without the prior written consent of the Underwriter and the Holders of the Warrant and the Warrant Securities representing a Majority of such securities (assuming exercise of all of the Warrants).
(8) The Company shall furnish to each Holder participating in the offering and to each underwriter, if any, a signed counterpart, addressed to such Holder or underwriter of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent public accounts who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letter, with respects to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(9) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(10) The Company shall deliver promptly deliver to each Holder participating in the offering requesting the correspondence described below and any managing underwriter copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to registration statement and permit each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"). Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.
(11) The Company shall enter into an underwriting agreement with the managing underwriter selected for such underwriting by Holders holding a Majority of the Warrant Securities requested to be included in such underwriting, except that in connection with an offering for which the Holders have piggyback rights, the Company shall have the sole right to select the managing underwriter. Such underwriting agreement shall be satisfactory in form and substance to the Company, a Majority of such Holders and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Securities and may, at their option, require that any or all the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders and their intended methods of distribution.
(12) For purposes of this Agreement, the term "Majority" in reference to the Holders of the Warrants or Warrant Securities, shall mean in excess of fifty percent (50%) of the then outstanding Warrants or Warrant Securities that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith, or (ii) have not been resold to the public pursuant to a registration statement filed with the Commission under the Act.
Appears in 1 contract
Covenants of the Company With Respect to Registration. The In connection with any registrations under Sections 7(b) and 7(c) hereof, the Company covenants and agrees as follows:
(a1) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than thirty a registration statement within forty-five (3045) business calendar days following of receipt of any demand therefortherefor pursuant to Section 7(b); provided, however, that the Company shall not be required to produce audited or unaudited financial statements for any period prior to the date such financial statements are required to be filed in a report on Form 10-KSB or Form 10-QSB, as the case may be. The Company shall use its best efforts to have any such Registration Statement registration statement declared effective at the earliest possible time, and shall furnish each holder of Registrable Holder desiring to sell Underwriters' Securities such number of prospectuses as shall reasonably be requested.
(b2) The Company shall pay all costscosts (excluding fees and expenses of Holders' counsel and any underwriting discounts or selling fees, expenses or commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements the first registration statement filed pursuant to Sections 7.3. 7(b) and 7.4.(a7(c) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses.
(c3) The Company will take all necessary action which may be required in qualifying use its best efforts to qualify or registering register the Registrable Underwriters' Securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolders, provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d4) The Company shall indemnify any holder the Holders of the Registrable Underwriters' Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement statement, but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth contained in Section 8 of the Underwriting Agreement.
(e5) Any holder The Holders of Registrable the Underwriters' Securities to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such HolderHolders, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement registration statement to the same extent and with the same effect as the provisions contained in Section 8 of the Underwriting Agreement pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting AgreementCompany.
(f6) Nothing contained in this Agreement shall be construed as requiring any Holder the Holders to exercise the their Underwriters' Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(g7) The Company shall not be entitled to include any securities other than the Underwriters' Securities in any registration statement filed pursuant to Section 7(b) hereof without the prior written consent, which consent shall not be unreasonably withheld, of the Holders of the Underwriters' Warrants and Underwriters' Securities representing a Majority of such securities (assuming exercise of all of the Underwriters' Warrants).
(8) The Company shall furnish to a designated representative of the Holders participating in the offering and to each underwriter, if any, a signed counterpart, addressed to the Company or the underwriter of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) if such registration includes an underwritten public offering a copy of the "cold comfort" letter dated the effective date of such registration statement signed by each independent public accountant who has issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letters. with respect to events subsequent to the date of such financial statements, as are duly covered in opinions of issuer's counsel and in accountants' letters, with respect to customary events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(9) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 1 (a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(10) The Company shall deliver promptly deliver to each Holder participating in the offering requesting the correspondence described below and any managing underwriter copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to registration statement and permit each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"). Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.
(11) The Company shall enter into an underwriting agreement with the managing underwriter selected for such underwriting by Holders holding a Majority of the Underwriters' Securities requested to be included in such underwriting, provided, however that (i) such managing underwriter shall be reasonably acceptable to the Company, except that in connection with an offering for which the Holders have piggyback rights, the Company shall have the sole right to select the managing underwriter or underwriters, and (ii) the Holders shall be responsible for any selling fees or commissions in connection with such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, a Majority of such Holders (in respect of a registration under Section 7(b) only) and such managing underwriter, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Underwriters' Securities and may, at their option, require that any or all the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders and their intended methods of distribution.
Appears in 1 contract
Samples: Underwriters' Warrant Agreement (Phoenix Preschool Holdings Inc)
Covenants of the Company With Respect to Registration. The In connection with any registration under Section 7.2 or 7.3 hereof, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than a registration statement within thirty (30) business days following of receipt of any demand thereforpursuant to Section 7.3, shall use its best efforts to have any such Registration Statement registration statements declared effective at the earliest possible time, and shall furnish each holder of Registrable Holder desiring to sell Warrant Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costscosts (excluding transfer taxes, if any, and fees and expenses of Holder(s)' counsel and any underwriting or selling commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. 7.2 and 7.4.(a7.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. The Holder(s) will pay all costs, fees and expenses in connection with any registration statement filed pursuant to Section 7.3(c). If the Company shall fail to comply with the provisions of Section 7.5(a), the Company shall, in addition to any other equitable or other damages or relief available to the Holder(s), be liable for any and all incidental, special and consequential damages and damages due to loss of profit sustained by the Holder(s) requesting registration of their Warrant Securities.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder the Holder(s) of the Registrable Warrant Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Securities Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Securities Act, the Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions contained in Section 8 of the Underwriting Agreement pursuant to which the Company has agreed to indemnify the Underwriters as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting AgreementUnderwriters.
(e) Any holder of Registrable Securities to be sold pursuant to a Registration Statement, and such Holder's successors and assigns, The Company shall severally, and not jointly, indemnify, require the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoeverHolder(s) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such Holder, or such Holder's successors or assigns, for specific inclusion in such Registration Statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.
(f) Nothing contained in this Agreement shall be construed as requiring any Holder to exercise the their Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(f) The Company shall not permit the inclusion of any securities other than the Warrant Securities to be included in the registration statement filed pursuant to Section 7.3(a) hereof, without the prior written consent of the Representative.
(g) The Company shall furnish to the Representative on behalf of each Holder participating in the offering and to the managing underwriter, if any, a signed counterpart, addressed to the Representative on behalf on each Holder and to the managing underwriter, if any, (i) an opinion of counsel to the Company, dated the effective date of such registration statement if there is no managing underwriter or the date of the closing under the underwriting agreement if there is a managing underwriter, and (ii) a "cold comfort" letter, dated the effective date of such registration statement and the date of the closing under the underwriting agreement if there is a managing underwriter, signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(h) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Securities Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Securities Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(i) The Company shall deliver promptly deliver to each Holder who so requests and the managing underwriter, if any, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement any registration statement filed pursuant to this Agreement, and permit each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that who so requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"). Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such each Holder or and the managing underwriter underwriter, if any, shall reasonably request.
(j) With respect to a registration statement filed pursuant to Section 7.3, the Company shall enter into an underwriting agreement with the managing underwriter, reasonably satisfactory to the Company, selected for such underwriting by Holders holding a majority of the Warrant Securities requested to be included in such underwriting. Such agreement shall be satisfactory in form and substance to the Company, each Holder and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Securities and may, at their option, require that any or all of the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders and their intended methods of distribution.
Appears in 1 contract
Samples: Warrant Agreement (Source Information Management Co)
Covenants of the Company With Respect to Registration. The In connection with any registrations under Sections 7(b) and 7(c) hereof, the Company covenants and agrees as follows:
(a1) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than thirty a registration statement within forty-five (3045) business calendar days following of receipt of any demand therefortherefor pursuant to section 7(b); provided, however, that the Company shall not be required to produce audited or unaudited financial statements for any period prior to the date such financial statements are required to be filed in a report on Form 10-KSB or Form 10-QSB, as the case may be. The Company shall use its best efforts to have any such Registration Statement registration statement declared effective at the earliest possible time, and shall furnish each holder of Holder desiring to sell Registrable Securities such number of prospectuses as shall reasonably be requested.
(b2) The Company shall pay all costscosts (excluding fees and expenses of Holders' counsel and any underwriting discounts or selling fees, expenses or commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements any registration statement filed pursuant to Sections 7.3. 7(b) and 7.4.(a7(c) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7(d), the Company shall, in addition to any other equitable or other relief available to the Holders, be liable for any or all incidental and special damages and damages due to loss of profit sustained by the Holders requesting registration of their Registrable Securities.
(c3) The Company will take all necessary action which may be required in qualifying to qualify or registering register the Registrable Securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolders, provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d4) The Company shall indemnify any holder the Holders of the Registrable Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Securities Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Securities Act, the Exchange Act or otherwise, arising from such registration statement statement, but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth Underwriter contained in Section 7 8 of the Underwriting Agreement Agreement, and the Holders shall indemnify the Company to provide for just the same extent and equitable contribution with the same effect as set forth the provisions pursuant to which the Underwriter has agreed to indemnify the Company contained in Section 8 of the Underwriting Agreement.
(e5) Any holder The Holders of the Registrable Securities to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Securities Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such HolderHolders, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement registration statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth contained in Section 8 of the Underwriting AgreementAgreement pursuant to which the Underwriter has agreed to indemnify the Company.
(f6) Nothing contained in this Agreement shall be construed as requiring any Holder the Holders to exercise their Underwriter's Warrants (or the Warrants held by such Holder purchasable upon exercise thereof) prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(g7) The Company shall not be entitled to include any securities other than the Registrable Securities in any registration statement filed pursuant to Section 7(b) hereof without the prior written consent of the Holders of a Majority of the Registrable Securities.
(8) The Company shall furnish to a designated representative of the Holders participating in the offering and to each underwriter, if any, a signed counterpart, addressed to such Holder or underwriter of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and if such registration relates to an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration relates to an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement (the "Accountants"), in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of the accountants' "cold comfort" letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in "cold comfort" letters, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in "cold comfort" letters delivered to underwriters in underwritten public offerings of securities.
(9) The Company shall as soon as practicable after the effective date of the registration statement make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section ll(a) of the Securities Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(10) The Company shall deliver promptly deliver to each Holder participating in the offering requesting the correspondence described below and any managing underwriter copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff Accountants with respect to the Registration Statement to registration statement and permit each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"). Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditorsrepresentatives of the Accountants, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.
(11) The Company shall enter into an underwriting agreement with the managing underwriter selected for such underwriting by Holders holding a Majority of the Registrable Securities requested to be included in such underwriting; provided, however, that (i) such managing underwriter shall be reasonably acceptable to the Company, except that in connection with an offering for which the Holders have piggyback rights, the Company shall have the sole right to select the managing underwriter, and (ii) the Holders shall be responsible for any selling fees or commissions in connection with such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, a Majority of such Holders and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders and their intended methods of distribution.
Appears in 1 contract
Covenants of the Company With Respect to Registration. The In connection with any registrations under Sections 7(b) and 7(c) hereof, the Company covenants and agrees as follows:
(a1) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than thirty a registration statement within forty-five (3045) business calendar days following of receipt of any demand therefortherefor pursuant to Section 7(b); provided, however, that the Company shall not be required to produce audited or unaudited financial statements for any period prior to the date such financial statements are required to be filed in a report on Form 10-KSB or Form 10-QSB, as the case may be. The Company shall use its best efforts to have any such Registration Statement registration statement declared effective at the earliest possible time, and shall furnish each holder of Registrable Holder desiring to sell Underwriters' Securities such number of prospectuses as shall reasonably be requested.
(b2) The Company shall pay all costscosts (excluding fees and expenses of Holders' counsel and any underwriting discounts or selling fees, expenses or commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements the first registration statement filed pursuant to Sections 7.3. 7(b) and 7.4.(a7(c) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses.
(c3) The Company will take all necessary action which may be required in qualifying use its best efforts to qualify or registering register the Registrable Underwriters' Securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolders, provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d4) The Company shall indemnify any holder the Holders of the Registrable Underwriters' Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement statement, but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth contained in Section 8 of the Underwriting Agreement.
(e5) Any holder The Holders of Registrable the Underwriters' Securities to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors officers, directors, attorneys, representatives and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such HolderHolders, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement registration statement to the same extent and with the same effect as the provisions contained in Section 8 of the Underwriting Agreement pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting AgreementCompany.
(f6) Nothing contained in this Agreement shall be construed as requiring any Holder the Holders to exercise the their Underwriters' Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(g7) The Company shall not be entitled to include any securities other than the Underwriters' Securities in any registration statement filed pursuant to Section 7(b) hereof without the prior written consent, which consent shall not be unreasonably withheld, of the Holders of the Underwriters' Warrants and Underwriters' Securities representing a Majority of such securities (assuming exercise of all of the Underwriters' Warrants).
(8) The Company shall furnish to a designated representative of the Holders participating in the offering and to each underwriter, if any, a signed counterpart, addressed to the Company or the underwriter of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) if such registration includes an underwritten public offering a copy of the "cold comfort" letter dated the effective date of such registration statement signed by each independent public accountant who has issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letters with respect to events subsequent to the date of such financial statements, as are duly covered in opinions of issuer's counsel and in accountants' letters, with respect to customary events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(9) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 1 (a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(10) The Company shall deliver promptly deliver to each Holder participating in the offering requesting the correspondence described below and any managing underwriter copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to registration statement and permit each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"). Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.
(11) The Company shall enter into an underwriting agreement with the managing underwriter selected for such underwriting by Holders holding a Majority of the Underwriters' Securities requested to be included in such underwriting, provided, however that (i) such managing underwriter shall be reasonably acceptable to the Company, except that in connection with an offering for which the Holders have piggyback rights, the Company shall have the sole right to select the managing underwriter or underwriters, and (ii) the Holders shall be responsible for any selling fees or commissions in connection with such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, a Majority of such Holders (in respect of a registration under Section 7(b) only) and such managing underwriter, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Underwriters' Securities and may, at their option, require that any or all the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders and their intended methods of distribution.
Appears in 1 contract
Samples: Underwriters' Warrant Agreement (Rockwell Medical Technologies Inc)
Covenants of the Company With Respect to Registration. The In connection with any registrations under Sections 7(b) and 7(c) hereof, the Company covenants and agrees as follows:
(a1) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than a registration statement within thirty (30) business calendar days following of receipt of any demand therefortherefor pursuant to Section 7(b); provided, however, that the Company shall not be required to produce audited or unaudited financial statements for any period prior to the date such financial statements are required to be filed in a report on Form 10-K or Form 10-Q, as the case may be. The Company shall use its best efforts to have any such Registration Statement registration statement declared effective at the earliest possible time, and shall furnish each holder of Registrable Holder desiring to sell Representative's Securities such number of prospectuses as shall reasonably be requested.
(b2) The Company shall pay all costscosts (excluding fees and expenses of Holders' counsel and any underwriting discounts or selling fees, expenses or commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements any registration statement filed pursuant to Sections 7.3. 7(b) and 7.4.(a7(c) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses.
(c3) The Company will take all necessary action which may be required in qualifying use its best efforts to qualify or registering register the Registrable Representative's Securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolders, provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d4) The Company shall indemnify any holder the Holders of the Registrable Representative's Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended 1934 (the "Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement statement, but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth Representative contained in Section 8 of the Underwriting Agreement.
(e5) Any holder The Holders of Registrable the Representative's Securities to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such HolderHolders, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement registration statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth contained in Section 8 of the Underwriting AgreementAgreement pursuant to which the Representative has agreed to indemnify the Company.
(f6) Nothing contained in this Agreement shall be construed as requiring any Holder the Holders to exercise the Warrants held by such Holder their Representative's Warrant prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof, provided that such Holders have made arrangements reasonably satisfactory to the Company to pay the exercise price from the proceeds of such offering.
(g7) The Company shall furnish to each Representative for the offering, if any, such documents as such Representative may reasonably require.
(8) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration
(9) The Company shall deliver promptly deliver to each Holder participating in the offering requesting the correspondence described below and any managing Representative copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to registration statement and permit each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter Representative to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"). Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.
(10) The Company shall enter into an underwriting agreement with the managing underwriter selected for such underwriting by Holders holding a Majority of the Representative's Securities requested to be included in such underwriting, provided, however that such managing underwriter shall be reasonably acceptable to the Company, except that in connection with an offering for which the Holders have piggyback rights, the Company shall have the sole right to select the managing underwriter or underwriters. Such underwriting agreement shall be satisfactory in form and substance to the Company, a Majority of such Holders (in respect of a registration under Section 7(b) only) and such managing underwriter, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Representative's Securities. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders and their intended methods of distribution.
Appears in 1 contract
Samples: Representative's Warrant Agreement (Outlook Sports Technology Inc)
Covenants of the Company With Respect to Registration. The In connection with any registration under Section 16.2 or 16.3 hereof, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the The Company shall file the Registration Statement as expeditiously as possible, but in any event no later than thirty (30) business days following receipt of any demand therefor, shall use its best efforts to file a registration statement within thirty (30) days of receipt of any demand pursuant to Section 16.3, shall use its good faith efforts to have any such Registration Statement registration statements declared effective at the earliest possible time, and shall furnish each holder of Registrable Holder desiring to sell Warrant Securities such number of prospectuses prospectus as shall reasonably be requested.
(b) The Company shall pay all costscosts (excluding transfer taxes, if any, and fees and expenses of Holder(s)' counsel and any underwriting or selling commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. 16.2 and 7.4.(a16.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. The Holder(s) will pay all costs, fees and expenses in connection with any registration statement filed pursuant to Section 16.3(c). If the Company shall fail to comply with the provisions of Section 16.4(a), the Company shall, in addition to any other equitable or other relief available to the Holder(s), be liable for any or all incidental, special and consequential damages and damages due to loss of profit sustained by the Holder(s) requesting registration of their Warrant Securities.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder the Holder(s) of the Registrable Warrant Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement statement, as a result of any violation by the Company of the Act, any state securities or "blue sky" laws or any rule or regulation thereunder, except to the same extent and with the same effect as the provisions Company is to be indemnified for such items pursuant to which the Company has agreed to indemnify the Underwriters as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement16.4(e) below.
(e) Any holder The Holder(s) of Registrable the Warrant Securities to be sold pursuant to a Registration Statementthe registration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such HolderHolders, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreementregistration statement.
(f) Nothing contained in this Agreement shall be construed as requiring any Holder the Holder(s) to exercise the their Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(g) The Company shall not permit the inclusion of any securities other than the Warrant Securities and Securities issued by the Company to be included in any registration statement filed pursuant to Section 16.3 hereof, without the prior written consent of the Underwriter.
(h) With respect to a registration statement filed pursuant to Sections 16.3, the Company shall furnish to each Holder participating in the offering and to each underwriter, if any, a signed counterpart, addressed to such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(j) The Company shall deliver promptly deliver to each Holder participating in the offering requesting the correspondence and memoranda described below and the managing underwriter copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to registration statement and permit each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement as it deems registration
(k) With respect to a registration statement filed pursuant to Section 16.3, the Company shall enter into an underwriting agreement with the managing underwriter, reasonably necessary satisfactory to comply with applicable securities laws or rules the Company, selected for such underwriting by Holders holding a majority of the National Association Warrant Securities requested to be included in such underwriting. Such agreement shall be satisfactory in form and substance to the Company, each Holder and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Securities Dealersand may, Inc. Such investigation shall include access to booksat their option, records require that any or all of the representations, warranties and properties and opportunities to discuss the business covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with its officers and independent auditors, all the Company or the underwriters except as they may relate to such reasonable extent Holders and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably requesttheir intended methods of distribution.
Appears in 1 contract
Covenants of the Company With Respect to Registration. The In connection with any registration under Sections 7.3 and 7.4 hereof, the Company covenants and agrees as follows:
(a1) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than thirty a registration statement within sixty (3060) business days following of receipt of any demand therefor, shall use its best efforts to have any such Registration Statement registration statements declared effective at the earliest possible time, and shall furnish each holder of Holder desiring to sell Registrable Securities such number of prospectuses as shall reasonably be requested.
(b2) The Company shall pay all costscosts (excluding fees and expenses of Holder(s)' counsel and any underwriting or selling commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. 7.3 and 7.4.(a) 7.4 hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.5(a), the Company shall, in addition to any other equitable or other relief available to the Holder(s), extend the exercise period of the Representatives' Warrants by such number of days as shall equal the delay caused by the Company's failure.
(c3) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securities, Holder(s); provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d4) The Company shall indemnify any holder the Holder(s) of the Registrable Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify each of the Underwriters as set forth contained in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.
(e5) Any holder The Holder(s) of the Registrable Securities to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange exchange Act or otherwise, arising from information furnished by or on behalf of such HolderHolders, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement registration statement to the same extent and with the same effect as the provisions contained in Section 7 of the Underwriting Agreement pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting AgreementCompany.
(f6) Nothing contained in this Agreement For a period of one hundred eighty (180) days after the effectiveness of any registration statement filed pursuant to Section 7.4 hereof, the Company shall be construed as requiring not permit any Holder to exercise the Warrants held by such Holder prior other registration statement (other than (1) a registration statement relating to the initial filing of any securities for which the Company has granted demand registration rights, as described in the Prospectus included in the Registration Statement, (2) a registration statement relating to the securities for which the Company has granted piggyback registration rights, as described in the Prospectus included in the Registration Statement and (3) a registration statement filed on Forms S-4 or S-8 to be or remain effective during the effectiveness thereofof a registration statement filed pursuant to Section 7.4 hereof, without the prior written consent of the Holders of the Registrable Securities representing a Majority of such securities.
(g7) The Company shall furnish upon request to each Holder participating in the offering and to each underwriter, if any, a signed counterpart, addressed to such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(8) The Company shall as soon as practicable after the effective date of any registration statement filed pursuant to Sections 7.3 and 7.4 hereof, and in any event within 15 months thereafter, make Agenerally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(9) The Company shall deliver promptly deliver to each Holder participating in the offering requesting the correspondence and memoranda described below and to the managing underwriters, copies of all written correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to registration statement and permit each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter underwriters to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. NASD. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.
(10) With respect to any registration under Section 7.4 hereof, the Company shall enter into an underwriting agreement with the managing underwriter selected for such underwriting by the Initiating Holders or the Paying Holders, as the case may be. Such agreement shall be satisfactory in form and substance to the Company, each Holder and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters, except as they may relate to such Holders and their intended methods of distribution.
(11) For purposes of this Agreement, the term "Majority" in reference to the Holders of Registrable Securities, shall mean in excess of fifty percent (50%) of the then outstanding Representatives' Warrants and/or Shares of Preferred Stock issued upon exercise of the Representatives' Warrants that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith and (ii) have not been resold to the public pursuant to a registration statement filed with the Commission under the Act.
Appears in 1 contract
Samples: Underwriting Agreement (Awg LTD)
Covenants of the Company With Respect to Registration. The Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the Company shall file the Registration Statement as expeditiously as possible, but in any event no later than thirty sixty (3060) business days following receipt of any demand therefor, shall use its best efforts to have any such Registration Statement declared effective at the earliest possible time, and shall furnish each holder of Registrable Securities such number of prospectuses as shall reasonably be requested, provided, however, that the Company may, at any time, delay the filing or delay or suspend the effectiveness of such demand registration or, without suspending such effectiveness, and instruct the Holders not to sell any securities included in such demand registration, (i) if the Company shall have determined upon the written advice of counsel (confirmation of which notice shall be provided to the Holder(s) in writing by such counsel) that the Company would be required to disclose any actions taken or proposed to be taken by the Company in good faith and for valid business reasons, including without limitation, the acquisition or divestiture of assets, which disclosure would have a material adverse effect on the Company or on such actions, or (ii) if required by law, to update the prospectus relating to any such registration to include updated financial statements (a "Suspension Period") by providing the Holder(s) with written notice of such Suspension Period and the reasons therefor; and provided further, that the Suspension Periods, in the aggregate, do not exceed ninety (90) days. The Company shall provide such notice as soon as practicable and in any event prior to the commencement of such Suspension Period.
(b) The Company shall pay all costs, fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances allowance applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements filed pursuant to Sections 7.3. 7.3 and 7.4.(a7.4(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities included in the Registration Statement for offering and sale under the securities or blue sky laws of such states as are reasonably requested by the holders of such securities, ; provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder of the Registrable Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters Underwriter as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.
(e) Any holder of Registrable Securities to be sold pursuant to a Registration Statementregistration statement, and such Holder's successors and assigns, shall severally, and not jointly, indemnify, the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such Holderholder, or such Holder's successors or assigns, for specific inclusion in such Registration Statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have Underwriter has agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.
(f) Nothing contained in this Agreement shall be construed as requiring any Holder to exercise the Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(g) The Company shall promptly deliver copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to each Holder holder of Registrable Securities included for such registration in such Registration Statement pursuant to Section 7.3 hereof or Section 7.4 hereof that requests requesting such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each holder of Registrable Securities and such Holder and managing underwriter to do such reasonable investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder holder of Registrable Securities or managing underwriter shall reasonably request.
Appears in 1 contract
Samples: Warrant Agreement (Network 1 Security Solutions Inc)
Covenants of the Company With Respect to Registration. The In connection with any registration under Section 7.2 or 7.3 hereof, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than thirty a registration statement within forty-five (3045) business days following of receipt of any demand therefor, shall use its best efforts to have any such Registration Statement registration statement declared effective at the earliest possible time, and shall furnish each holder of Registrable Securities Holder desiring to sell Units underlying the Representative's Purchase Options, such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costscosts (excluding fees and expenses of Holder(s) counsel and any underwriting or selling commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. 7.2 and 7.4.(a7.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. The Holder(s) will pay all costs, fees and expenses in connection with any registration statement filed pursuant to Section 7.3(c). If the Company shall fail to comply with the provisions of Section 7.4(a), the Company shall, in addition to any other equitable or other relief available to the Holder(s), be liable for any or all incidental, special and consequential damages and damages due to loss of profit sustained by the Holder(s) requesting registration of their securities hereunder.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Units (inclusive of the shares of Preferred Stock, the Preferred Warrants and the shares of Preferred Stock underlying the Preferred Warrants) underlying the Representative's Purchase Options included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder the Holder(s) of the Registrable Securities Units underlying same to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth Representative contained in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.
(e) Any holder The Holder(s) of Registrable Securities the Units underlying the Representative's Purchase Options to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such HolderHolders, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement registration statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth contained in Section 7 of the Underwriting Agreement and pursuant to provide for just and equitable contribution as set forth in Section 8 of which the Underwriting AgreementRepresentative has agreed to indemnify the Company.
(f) Nothing contained in this Agreement shall be construed as requiring any Holder the Holder(s) to exercise the Warrants held by such Holder their Representative's Purchase Options prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(g) The Company shall not permit the inclusion of any securities other than the Units underlying the Representative's Purchase Options to be included in any registration statement filed pursuant to Section 7.3 hereof, or permit any other registration statement to be or remain effective during the effectiveness of a registration statement filed pursuant to Section 7.3 hereof, without the prior written consent of the Holders of the Representative's Purchase Options and Units underlying same representing a Majority of such securities.
(h) The Company shall furnish to each Holder participating in the offering and to each underwriter, if any, a signed counterpart, addressed to such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, have made "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(j) The Company shall deliver promptly deliver to each Holder participating in the offering requesting the correspondence and memoranda described below, and the managing underwriters, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to registration statement and permit each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"). Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.
(k) The Company shall enter into an underwriting agreement with the managing underwriters selected for such underwriting by Holders holding a Majority of the Units underlying same requested to be included in such underwriting. Such agreement shall be satisfactory in form and substance to the Company, each Holder and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Units underlying same and may, at their option, require that any or all the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders, their intended methods of distribution, and except for matters related to disclosures with respect to such Holders, contained or required to be contained, in such registration statement under the Act and the rules and regulations thereunder.
(l) For purposes of this Agreement, the term "Majority" in reference to the Holders of Representative's Purchase Options, shall mean in excess of fifty percent (50%) of the then outstanding Representative's Purchase Options assuming full exercise thereof that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their families, persons acting as nominees or in conjunction therewith or (ii) have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Samples: Representative's Purchase Option Agreement (Kids Stuff Inc)
Covenants of the Company With Respect to Registration. The Company hereby covenants and agrees as follows:
(a) In connection with any Following the effective date of a registration under Section 7.4 hereofstatement covering Registrable Shares, the Company shall file shall, upon the request of Holder, forthwith supply such reasonable number of copies of the Registration Statement as expeditiously as possibleStatement, but in any event no later than thirty (30) business days following receipt preliminary prospectus and prospectus meeting the requirements of any demand therefor, shall use its best efforts to have any such Registration Statement declared effective at the earliest possible timeAct, and shall furnish each holder other documents necessary or incidental to the public offering of the Registrable Securities such number of prospectuses Shares as shall be reasonably be requestedrequested by Holder to permit Holder to make a public distribution of the Registrable Shares. The obligations of the Company hereunder with respect to the Registrable Shares are expressly conditioned on Holder's furnishing to the Company such appropriate information concerning Holder, the Registrable Shares and the terms of Holder's offering of such shares as the Company may request.
(b) The Company shall will pay all costs, fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements filed pursuant to Sections 7.3. and 7.4.(a) hereof this Agreement, including, without limitation, the Company's legal and accounting fees, printing expenses, expenses and blue sky fees and expenses; provided, however, that Holder shall be solely responsible for the fees of any counsel or advisor retained by Holder in connection with such registration and any transfer taxes or underwriting discounts, selling commissions or selling fees applicable to the Registrable Shares sold by Holder pursuant thereto.
(c) The Company will take all necessary action which may be required in qualifying use reasonable efforts to qualify or registering register the Registrable Securities Shares included in the a Registration Statement for offering and sale under the securities or blue sky laws of such states as are reasonably requested by the holders of such securitiesHolder, provided that the Company shall not be obligated to execute or file any general consent to service of process (unless the Company is already then subject to service in such jurisdiction) or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Notwithstanding anything contained in this Agreement to the contrary, the Company shall indemnify not be obligated to register the Registrable Shares under the Act or maintain the effectiveness of any holder registration statement filed under Section 1 or 2 hereof if it receives an opinion of counsel to the Company that any of the Registrable Securities to Shares may be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter freely traded without registration under the Act and each personAct, if any, who controls such holder or underwriter or person deemed to be an underwriter within the meaning of Section 15 under Rule 144 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.
(e) Any holder of Registrable Securities to be sold pursuant to a Registration Statement, and such Holder's successors and assigns, shall severally, and not jointly, indemnify, the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such Holder, or such Holder's successors or assigns, for specific inclusion in such Registration Statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.
(f) . Nothing contained in this Agreement shall be construed as requiring any Holder to exercise the Warrants held by such Holder prior to the initial filing of any Registration Statement or the effectiveness thereof.
(g) The Company shall promptly deliver copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. Such investigation shall include access to books, records and properties and opportunities to discuss the business of require the Company with its officers and independent auditorsto undergo an audit, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably requestother than in the ordinary course of business.
Appears in 1 contract
Covenants of the Company With Respect to Registration. The In connection with any registration under Section 7.2 hereof, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the The Company shall file the Registration Statement as expeditiously as possible, but in any event no later than thirty (30) business days following receipt of any demand therefor, shall use its reasonable best efforts to have any such Registration Statement registration statements filed with the SEC including the Shares declared effective at the earliest possible time, and shall furnish each holder of Registrable Securities such Shares (the "Holder") desiring to sell Shares such number of prospectuses as shall reasonably be requested. The Company shall keep effective any registration or qualification contemplated by this Section 7 and shall from time to time amend or supplement each applicable registration statement, preliminary prospectus, final prospectus, application, document and communication for such period of time as set forth in Section 7.1 herein.
(b) The Company shall pay all costscosts (excluding fees and expenses of Holder(s) counsel, accounting and any underwriting or selling commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. and 7.4.(a) Section 7.2 hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses; provided that the Company shall not be responsible for transfer taxes, fees and disbursement of accountants and counsel for Holders, and other related selling expenses incurred by Holders.
(c) The Company will take all necessary action which may be required in qualifying or registering use reasonable efforts to qualify the Registrable Securities Shares included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction or to subject itself to taxation in any such jurisdiction.
(di) The Subject to the conditions set forth below, the Company shall agrees to indemnify and hold harmless the Holder, any holder of any of the Registrable Securities to be sold pursuant to any Registration Statement Shares, their officers, directors, partners, employees, agents and any underwriter or person deemed to be an underwriter under the Act counsel, and each person, if any, who controls any such holder or underwriter or person deemed to be an underwriter within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), from and against any and all loss, liability, charge, claim, damagedamage and expense whatsoever (which shall include, for all purposes of this paragraph (d), but not be limited to, reasonable attorneys' fees and any and all expense or liability (including whatsoever reasonably incurred, and any and all expenses reasonably incurred amounts paid in investigating, preparing or defending against settlement of any claim whatsoeveror litigation), as and when incurred, arising out of, based upon, or in connection with (A) any untrue statement or alleged untrue statement of a material fact contained (Y) in any registration statement, final prospectus, or any amendment or supplement thereto, or (Z) in any application or other document or communication (in this paragraph 7(d) collectively called an "application") executed by or on behalf of the Company filed in any jurisdiction in order to which register or qualify any of them may become subject the Shares under the Actsecurities or blue sky laws thereof; or any omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, unless such statement or omission was made in reliance upon and in conformity with written information furnished to the Exchange Act Company with respect to the Holder or otherwise, arising from any holder of any of the Shares by or on behalf of such Holder or such other holder expressly for inclusion in any such registration statement to the same extent and with the same effect or final prospectus, or any amendment or supplement thereto, or in any application, as the provisions pursuant to which case may be, or (B) any breach of any representation, warranty, covenant or agreement of the Company has agreed to indemnify the Underwriters as set forth contained in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreementthis Warrant.
(eii) Any holder The Holder and any other Holder of Registrable Securities Shares agrees to be sold pursuant to a Registration Statement, indemnify and such Holder's successors and assigns, shall severally, and not jointly, indemnify, hold harmless the Company, its officers and directors officers, directors, employees, agents or counsel and each other person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all lossto the same extent as the foregoing indemnity from the Company to the Holder and such other Holder in paragraph 7.2(d)(i), claimbut only with respect to statements or omissions, damage if any, made in any registration statement, preliminary prospectus, or expense final prospectus (as from time to time amended and supplemented), or liability (including all expenses reasonably incurred any amendment or supplement thereto, or in investigatingany application, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from in reliance upon and in conformity with written information furnished to the Company with respect to the Holder or such other Holder or their plan of distribution, by or on behalf of the Holder or such Holderother Holder expressly for inclusion in any such registration statement, preliminary prospectus, or final prospectus, or any amendment or supplement thereto, or in any application, as the case may be. If any action shall be brought against the Company or any other person so indemnified based on any such Holder's successors registration statement, preliminary prospectus, or assignsfinal prospectus, for specific inclusion or any amendment or supplement thereto, or in any application, and in respect of which indemnity may be sought against the Holder pursuant to this paragraph 7.2(d)(ii), the Holder and such Registration Statement other Holder shall have the rights and duties given to the same extent Company, and with the same effect as Company and each other person so indemnified shall have the rights and duties given to the indemnified parties, by the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreementparagraph 7.2(d)(i).
(fiii) Promptly after receipt by any person in respect of which indemnity may be sought pursuant to this Section 7.2 (an "Indemnified Party") of notice of any claim or the commencement of any action, the Indemnified Party shall, if a claim in respect thereof is to be made against the person against whom such indemnity may be sought (an "Indemnifying Party") notify the Indemnifying Party in writing of the claim or the commencement of such action; provided that the failure to notify the Indemnifying Party shall not relieve it from any liability which it may have to an Indemnified Party otherwise than under this Section 7.2(d) except to the extent of any actual prejudice resulting therefore. If any such claim or action shall be brought against an Indemnified Party and it shall notify the Indemnifying Party thereof, the Indemnifying Party shall be entitled to participate therein, and, to the extent that it wishes, jointly with any other similarly notified Indemnifying Party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Party. After notice from the Indemnifying Party to the Indemnified Party of its election to assume the defense of such claim or action, the Indemnifying Party shall not be liable to the Indemnified Party for any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than reasonable costs of investigation; provided that the Indemnified Party shall have the right to employ separate counsel to represent the Indemnified Party in connection with any claim in respect of which indemnity may be sought by the Indemnified Party against the Indemnifying Party, but the fees and expenses of such counsel shall be for the account of such Indemnified Party unless (A) the Indemnifying Party and the Indemnified Party shall have mutually agreed in writing to the retention of such counsel or (B) the Indemnifying Party shall not have assumed the defense thereof with counsel reasonably satisfactory to the Indemnified Party or (C) in the opinion of counsel to such Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential conflicts of interest between them, it being understood however, that the Indemnifying Party shall not, in connection with any one such claim or action or separate but substantially similar or related claims or actions in the same jurisdiction arising out of the same allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (together with local counsel) at any time for all Indemnified Parties. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any settlement of any claim or pending or threatened proceeding in respect of which the Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party and such settlement includes an unconditional release of such Indemnified Party from all liability arising out of such claim or proceeding. Whether or not the defense of any claim or action is assumed by the Indemnifying Party, such Indemnifying Party will not be subject to any liability for any settlement made without its consent, which consent will not be unreasonably withheld.
(e) Nothing contained in this Agreement shall be construed as requiring any Holder the Holder(s) to exercise the their Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(gf) The Company shall promptly deliver copies as soon as practicable, but in any event not later than 45 days after the end of all correspondence between the Commission and 12-month period beginning on the day after the end of the fiscal quarter of the Company during which the effective date of the registration statement occurs (90 days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), shall make generally available to its counsel or auditors security holders, in the manner specified in Rule 158(b) of the Rules and all memoranda relating Regulations, and to discussions the Holder, an earnings statement which will be in the detail required by, and will otherwise comply with, the provisions of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations, which statement need not be audited unless required by the Act, covering a period of at least 12 consecutive months after the effective date of the Registration Statement.
(g) In connection with the Commission or its staff registration of the Shares, the Holders shall have the following obligations:
(i) It shall be a condition precedent to the obligations of the Company to complete the registration pursuant to this Agreement with respect to the Shares of a particular Holder that such Holder shall furnish to the Company such information in writing regarding itself, the Shares held by it, and the intended method of disposition of the Shares held by it, as shall be reasonably required to effect the registration of such Shares, including without limitation a statement as to the number of Shares proposed to be sold and the intended method(s) of distribution and a statement of the firm intent of such Holder to offer Shares for sale. In addition, each Holder shall execute such other documents in connection with such registration as the Company may reasonably request. At least five (5) days prior to the first anticipated filing date of the Registration Statement to Statement, the Company shall notify each Holder of Registrable Securities the information the Company requires from each such Holder (the "Requested Information") if such Holder elects to have any of such Hxxxxx's Shares included for registration in such the Registration Statement. If at least two (2) business days prior to the filing date the Company has not received the Requested Information from a Holder (a "Non- Responsive Holder"), then the Company may file the Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests without including Shares of such correspondence and memoranda and to the managing underwriterNon-Responsive Holder;
(ii) Each Holder, if any, by such Hxxxxx's acceptance of the offering Shares, agrees to cooperate with the Company as reasonably requested by the Company in connection with the preparation and filing of the Registration Statement hereunder, unless such Hxxxxx has notified the Company in writing of such Hxxxxx's election to exclude all of such Hxxxxx's Shares from the Registration Statement; and
(iii) Each Holder agrees that, upon receipt of any notice from the Company of (A) the happening of any event as a result of which the prospectus included in the registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made, not misleading; or (B) the issuance by the SEC of any stop order or other suspension of the effectiveness of the registration statement, such Holder will immediately discontinue disposition of Shares pursuant to the Registration Statement covering such Shares until such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement as it deems reasonably necessary to comply with applicable securities laws or rules receipt of the National Association copies of Securities Dealersa supplemented or amended Prospectus in the case of all event described in clause (A) above, Inc. Such investigation shall include access to books, records and properties and opportunities to discuss the business or a notice of the removal of any suspension in the case of an event described in clause (B) above. If so directed by the Company, such Hxxxxx shall deliver to the Company with its officers or destroy (and independent auditors, deliver to the Company a certificate of destruction) all to copies in such reasonable extent and Hxxxxx's possession of the prospectus covering such Shares at the time of receipt of such reasonable times and as often as any such Holder or managing underwriter shall reasonably requestnotice.
Appears in 1 contract
Covenants of the Company With Respect to Registration. The In connection with any registration under Section 10.1 or 10.2 hereof, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the The Company shall use its reasonable efforts to file the Registration Statement as expeditiously as possible, but in any event no later than thirty a registration statement within fifty (3050) business days following of receipt of any demand therefor, shall use its best reasonable efforts to have any such Registration Statement registration statements declared effective at the earliest possible time, and shall furnish each holder of Registrable Securities Holder desiring to sell Warrant Shares under such registration statement such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costscosts (excluding fees and expenses of Holder(s)' counsel and any underwriting or selling commissions which shall be paid by the Holders), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. Section 10.1 and 7.4.(a10.2(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder of the Registrable Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.
(e) Any holder of Registrable Securities to be sold pursuant to a Registration Statement, and such Holder's successors and assigns, shall severally, and not jointly, indemnify, the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such Holder, or such Holder's successors or assigns, for specific inclusion in such Registration Statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.
(f) Nothing contained in this Agreement shall be construed as requiring any Holder the Holders to exercise the their Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(ge) The Company shall deliver promptly deliver to each Holder participating in the offering requesting the correspondence and memoranda described below copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and statement.
(f) Notwithstanding anything herein to the managing underwritercontrary, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. Such investigation shall include access to books, records and properties and opportunities to discuss the business obligations of the Company with its officers and independent auditorsrights of the Holders under Sections 10.1, all to such reasonable extent 10,.2 and 10.3 shall expire and terminate at such reasonable times time as Rxxx, Bxxx & Co., Inc. or its successors, shall have received from counsel to the Company an unqualified written opinion of such counsel that the Holders have the right, pursuant to the provisions of Rule 144 under the Act, to sell within any three month period from the date of the opinion all Warrant Shares then held and as often as any purchasable upon exercise of the Warrants by such Holder or managing underwriter shall reasonably requestHolders.
Appears in 1 contract
Samples: Warrant Agreement (Perma Fix Environmental Services Inc)
Covenants of the Company With Respect to Registration. The In connection with any registration under Section 11.1, 11.2, or 11.3, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the The Company shall file the Registration Statement as expeditiously as possible, but in any event no later than thirty (30) business days following receipt of any demand therefor, shall use its best efforts to have any such Registration Statement registration statements declared effective at the earliest possible time, and shall furnish each holder of Registrable Securities desiring to sell securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all of the costs, fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. 11.1, 11.2, and 7.4.(a) hereof 11.3 including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees, and expenses (including legal fees and expensesdisbursements of one counsel for holders of Warrants and/or Warrant Shares in connection with such registration statements but excluding each such holder's pro rata share of underwriting commissions and discounts). If the Company shall fail to comply with the provisions of Section 11.4(a), the Company shall, in addition to any other equitable or other relief available to the holder(s) of Warrants and/or Warrant Shares, extend the Exercise Period of the Warrants by such number of days as shall equal any delay in excess of 120 days caused by the Company's failure.
(c) The Company will shall take all necessary action which that may be required in qualifying or registering the Registrable Securities securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as are the holder(s) of Warrants and/or Warrant Shares shall reasonably requested by the holders of such securitiesdesignate; provided, provided that the Company shall not be obligated to execute qualify to do business in any such jurisdiction or to file any general consent to service of process in any jurisdiction in any action other than one arising out of the offering or to qualify as a foreign corporation to do business under the laws sale of any such jurisdictionthe Warrants and/or Warrant Shares.
(d) The Company shall indemnify any holder of the Registrable Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.
(e) Any holder of Registrable Securities to be sold pursuant to a Registration Statement, and such Holder's successors and assigns, shall severally, and not jointly, indemnify, the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such Holder, or such Holder's successors or assigns, for specific inclusion in such Registration Statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.
(f) Nothing contained in this Agreement shall be construed as requiring any a Holder to exercise the Warrants held by such Holder any Warrant representing Warrant Shares to be registered under Section 11.1, 11.2, or 11.3 prior to the initial filing closing of any Registration Statement the sales pursuant to an offering made by means of a registration statement referred to in Sections 11.1, 11.2, or the effectiveness thereof11.3.
(ge) In connection with any registration statement filed pursuant to Section 11.1, 11.2, or 11.3, the Company shall furnish to each holder of Warrants and/or Warrant Shares participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to such holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(f) The Company shall promptly deliver copies of all correspondence between as soon as practicable after the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, effective date of the offering registration statement, and in connection with any event within fifteen (15) months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Securities Act) an earnings statement (which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.need not be audited) complying
Appears in 1 contract
Samples: Warrant Agreement (Consumer Portfolio Services Inc)
Covenants of the Company With Respect to Registration. The In connection with any registration under Section 7.2 or 7.3 hereof, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 7.3 hereof, the Company shall file the Registration Statement a registration statement as expeditiously as possible, but in any event event, except as otherwise provided in Section 7.3(b), no later than thirty sixty (3060) business days following receipt of any demand therefor, shall use its best efforts to have any such Registration Statement registration statement declared effective at the earliest possible time, shall maintain the effectiveness thereof for at least twelve (12) months (or such longer period as may be required by paragraph (g) below), and shall furnish each holder Holder of Registrable Securities such number of prospectuses as shall reasonably be requested.
(b) The Except as otherwise specifically provided in Section 7.4(h)(v) hereof, the Company shall pay all costscosts (excluding fees and expenses of Holders' counsel and any underwriting or selling commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. and 7.4.(a) hereof Section 7 hereof, including, without limitation, the Company's legal and accounting fees, printing expenses, and expenses as well as "blue sky sky" fees and expenses.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities included in the Registration Statement a registration statement for offering and sale under the securities or "blue sky sky" laws of such states as are reasonably requested by the holders of such securitiesHolders, provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder Holder of the Registrable Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holder within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement statement, but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth Underwriter contained in Section 8 of the Underwriting Agreement.
(e) Any holder The Holders of the Registrable Securities to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such HolderHolders, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement registration statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth contained in Section 8 of the Underwriting AgreementAgreement pursuant to which the Underwriter has agreed to indemnify the Company.
(f) Nothing contained in this Agreement shall be construed as requiring any Holder to exercise the its Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(g) In connection with any registration statement filed in response to a Demand Registration Request pursuant to Section 7.3 hereof, the Company shall use its reasonable efforts not to permit the inclusion of any securities outstanding on the date of this Agreement (or issuable upon exercise of warrants outstanding on the date of this Agreement) other than the Registrable Securities in such demand registration statement or permit any other registration statement relating to such other securities outstanding on the date of this Agreement (or issuable upon exercise of warrants outstanding on the date of this Agreement), other than (i) on Form S-8 or (ii) securities whose holders are entitled to registration rights as of the date hereof, to become effective during the first six (6) months following the effectiveness of a registration statement filed under Section 7.3 hereof, without the prior written consent of the Holders of the Registrable Securities representing a Majority of such securities (assuming the exercise of all Warrants). In the event the Company is required to include securities outstanding on the date of this Agreement (or issuable upon exercise of warrants outstanding on the date of this Agreement) other than the Registrable Securities in a registration statement filed under Section 7.3 hereof or in a separate registration statement (other than on Form S-8 or with respect to securities whose holders are entitled to registration rights as of the date hereof) within six (6) months after the effectiveness of a registration statement filed pursuant to this Section 7.3, the twelve (12) month period pursuant to Section 7.3(a) shall be extended for an additional six (6) months.
(h) The Company shall have no obligation pursuant to Section 7.3 hereof to effect an underwritten offering of the Registrable Securities in response to a Demand Registration Request. In the event that the Company shall determine that a registration statement filed pursuant to Section 7.3 hereof shall include an underwritten public offering of the Registrable Securities:
(i) the Company shall furnish to each underwriter participating in the offering, or the representative of such underwriters if one has been appointed, a signed counterpart, addressed to such underwriter, of (A) an opinion of counsel to the Company, dated the effective date of such registration statement and the date of the closing under the underwriting agreement and (B) a "cold comfort" letter, dated the effective date of such registration statement and the date of the closing under the underwriting agreement, signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities; and
(ii) the Company, as soon as practicable, but in any event not later than forty-five (45) days after the end of the twelve (12) month period beginning on the day after the end of the Company's fiscal quarter during which the effective date of the registration statement occurs (ninety (90) days in the event that the end of such fiscal quarter is the end of the Company's fiscal year), shall make generally available to the Holders of the Registrable Securities, in the manner specified in Rule 158(b) of the Rules and Regulations, an earnings statement which will be in the detail required by, and will otherwise comply with, the provisions of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations, which statement need not be audited unless required by the Act, covering a period of at least twelve (12) consecutive months after the effective date of the registration statement; and
(iii) the Company shall deliver promptly deliver to the managing underwriter(s), copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence statement and memoranda and to permit the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter underwriter(s) to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. NASD. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request; and
(iv) the Company shall enter into an underwriting agreement with the managing underwriter(s) selected for such underwriting by Holders holding a Majority of the Registrable Securities (assuming the exercise of all Warrants) requested to be included in such underwriting. Such agreement shall be satisfactory in form and substance to the Company, each Holder participating in the underwritten offering and such managing underwriter(s), and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter(s). The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their securities. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders and their intended methods of distribution; and
(v) the reasonable out-of-pocket costs incurred by the Company in providing any opinion or "cold comfort" letter pursuant to Section 7.4(h)(i) hereof shall be borne as follows: (A) in the event that the underwritten offering includes any securities being sold for the account of the Company or any securities owned by another security holder of the Company who has not agreed to pay any portion of such costs, the Company shall pay all such costs; (B) in the event that the underwritten offering consists solely of Registrable Securities, the particpating Holders will pay all such costs and (C) in the event that the underwritten offering consists of Registrable Securities and other outstanding securities whose owners have agreed to pay a pro rata portion of such costs, such costs will be shared pro rata among the participating Holders and the holders of the other outstanding securities included in such offering according to the same ratio as the number of securities proposed to be registered by each holder bears to the total xxxxx of securities proposed to be registered by all of the security holders included in such offering.
(i) For purposes of this Agreement, the term "Majority", shall mean in excess of fifty percent (50%) of the then-outstanding Warrants or Warrant Shares (assuming the exercise of all Warrants) that (i) are not held by the Company, an affiliate, officer, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith or (ii) have not been resold to the public pursuant to a registration statement filed with the Commission under the Act or pursuant to Rule 144(k) of the Act or any comparable exemption from registration.
Appears in 1 contract
Covenants of the Company With Respect to Registration. The In --------- -- --- ------- ---- ------- -- ------------ connection with any registration under Sections 7(b) and 7(c) hereof, the Company covenants and agrees as follows:
(a1) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than a registration statement within thirty (30) business days following of receipt of any demand therefor, shall use its best efforts to have any such Registration Statement registration statements declared effective at the earliest possible time, and shall furnish each holder of Registrable Holder desiring to sell Warrant Securities such number of prospectuses as shall reasonably be requested.
(b2) The Company shall pay all costscosts (excluding fees and expenses of Holder(s)' counsel and any underwriting discounts or selling fees, expenses or commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements any registration statement filed pursuant to Sections 7.3. 7(b) and 7.4.(a7(c) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7(d)(1), the Company shall, in addition to any other equitable or other relief available to the Holder(s), be liable for any or all incidental, special and consequential damages and damages due to loss of profit sustained by the Holder(s) requesting registration of their Warrant Securities.
(c3) The Company will take all necessary action which may be required in qualifying to qualify or registering register the Registrable Warrant Securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d4) The Company shall indemnify any holder the Holder(s) of the Registrable Warrant Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth Underwriter contained in Section 7 8 of the Underwriting Agreement Agreement, and the Holder(s) shall indemnify the Company to provide for just the same extent and equitable contribution with the same effect as set forth the provisions pursuant to which the Underwriter has agreed to indemnify the Company contained in Section 8 of the Underwriting Agreement.
(e5) Any holder The Holder(s) of Registrable the Warrant Securities to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such HolderHolders, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement registration statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth contained in Section 8 of the Underwriting AgreementAgreement pursuant to which the Underwriter has agreed to indemnify the Company.
(f6) Nothing contained in this Agreement shall be construed as requiring any Holder the Holder(s) to exercise the their Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(g7) The Company shall not be entitled to include any securities other than the Warrant Securities in any registration statement filed pursuant to Section 7(b) hereof without the prior written consent of the Underwriter and the Holders of the Warrants and Warrant Securities representing a Majority of such securities (assuming exercise of all of the Warrants).
(8) The Company shall furnish to each Holder participating in the offering and to each underwriter, if any, a signed counterpart, addressed to such Holder or underwriter of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and if such registration includes an underwritten public offering, an opinion dated the date of the Closing under the underwriting agreement), and (ii) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the Closing under the underwriting agreement) signed by the independent public accounts who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letter, with respects to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(9) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying 11 with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(10) The Company shall deliver promptly deliver to each Holder participating in the offering requesting the correspondence described below and any managing underwriter copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to registration statement and permit each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"). Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.
(11) The Company shall enter into an underwriting agreement with the managing underwriter selected for such underwriting by Holders holding a Majority of the Warrant Securities requested to be included in such underwriting, except that in connection with an offering for which the Holders have piggyback rights, the Company shall have the sole right to select the managing underwriter. Such underwriting agreement shall be satisfactory in form and substance to the Company, a Majority of such Holders and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Securities and may, at their option, require that any or all the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders and their intended methods of distribution.
(12) For purposes of this Agreement, the term "Majority" in reference to the Holders of the Warrants or Warrant Securities, shall mean in excess of fifty percent (50%) of the then outstanding Warrants or Warrant Securities that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction there- with, or (ii) have not been resold to the public pursuant to a registration statement filed with the Commission under the Act.
Appears in 1 contract
Covenants of the Company With Respect to Registration. The In connection with any registration under Section 7.2 or 7.3 hereof, the Company covenants and agrees as follows:
(a) In connection with The Company shall use its best efforts to file a registration statement within ninety (90) days of receipt of any demand therefor (provided however that in the event that the Company is unable to file such registration under Section 7.4 hereofstatement within such ninety (90) day period solely due to events or circumstances predominantly outside of the Company's control as determined in good faith by the Board of Directors as evidenced by a certificate of the President and Chairman of the Company addressed to the Holder(s), the Company shall file the Registration Statement as expeditiously as possible, but in any event no later than have up to an additional thirty (30) business days following receipt of any demand thereforto make such filing), shall use its best efforts to have any such Registration Statement registration statements declared effective at the earliest possible time, and shall furnish each holder of Registrable the Holder desiring to sell Warrant Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costscosts (excluding any underwriting or selling commissions or other charges of any broker-dealer acting on behalf of Holders), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. 7.2 and 7.4.(a7.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.4(a), the Company shall, in addition to any other equitable or other relief available to the Holder(s), be liable for any or all damages due to loss of profit sustained by the Holder(s) requesting registration of its Warrant Securities.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as are reasonably the state requested by the holders of such securities, provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdictionHolder.
(di) The Company shall indemnify any holder the Holder(s) of the Registrable Warrant Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holder within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreementstatement.
(eii) Any holder The Holder(s) of Registrable the Warrant Securities to be sold pursuant to a Registration Statement, any registration statement agree(s) to indemnify and such Holder's successors and assigns, shall severally, and not jointly, indemnify, hold harmless the Company, each of its officers and directors directors, and each person, if any, person who controls the Company within the meaning of Section 15 of either the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such Holder, or such Holder's successors or assigns, for specific inclusion in such Registration Statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify foregoing indemnity from the Company as set forth to the Holder(s), but only with reference to written information relating to the Holder(s) furnished to the Company by the Holder(s) specifically for inclusion in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreementsuch registration statement.
(fe) Nothing contained in this Agreement shall be construed as requiring any Holder the Holder(s) to exercise the their Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(f) The Company shall furnish to each Holder participating in the offering and to each underwriter, if any, a signed counterpart, addressed to such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering; a letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to agents subsequent to the date of such financial statements, are as customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offering of securities.
(g) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration agreement.
(h) The Company shall deliver promptly deliver to each Holder participating in the offering requesting the correspondence and memoranda described below and the managing underwriter copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence statement and memoranda and to permit the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"). Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably requestrequest as it deems necessary to comply with applicable securities laws or NASD rules.
(i) In addition to the Warrant Securities, upon the written request therefor by any Holder(s), the Company shall include in the registration statement any other securities of the Company held by such Holder(s) as of the date of filing of such registration statement, including without limitation, restricted shares of Common Stock, options, warrants or any other securities convertible into shares of Common Stock.
(j) For purposes of this Agreement, the term "Majority" in reference to the Holders of Warrants or Warrant Securities, shall mean in excess of fifty percent (50%) of the then outstanding Warrants or Warrant Securities that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith or (ii) have not been resold to the public pursuant to a registration statement filed with the Commission under the Act.
Appears in 1 contract
Samples: Warrant Agreement (C3d Inc)
Covenants of the Company With Respect to Registration. The In connection with any registration under Section 7.2 or 7.3 hereof, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than a registration statement within thirty (30) business days following of receipt of any demand therefor, shall use its best efforts to have any such Registration Statement registration statements declared effective at the earliest possible time, and shall furnish each holder of Registrable Holder desiring to sell Warrant Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costscosts (excluding fees and expenses of Holder(s)' counsel and any underwriting or selling commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. 7.2 and 7.4.(a7.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.4(a), the Company shall, in addition to any other equitable or other relief available to the Holder(s), be liable for any or all incidental or special damages sustained by the Holder(s) requesting registration of their Warrant Securities, excluding consequential damages.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder the Holder(s) of the Registrable Warrant Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth contained in Section 7 of the Underwriting Agreement Agreement. The Company further agree(s) that upon demand by an indemnified person, at any time or from time to time, it will promptly reimburse such indemnified person for any loss, claim, damage, liability, cost or expense actually and reasonably paid by the indemnified person as to provide for just and equitable contribution which the Company has indemnified such person pursuant hereto. Notwithstanding the foregoing provisions of this Section 7.4(d) any such payment or reimbursement by the Company of fees, expenses or disbursements incurred by an indemnified person in any proceeding in which a final judgment by a court of competent jurisdiction (after all appeals or the expiration of time to appeal) is entered against the Company or such indemnified person as set forth in Section 8 a direct result of the Underwriting AgreementHolder(s) or such person's gross negligence or willful misfeasance will be promptly repaid to the Company.
(e) Any holder The Holder(s) of Registrable the Warrant Securities to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such Holder, or such Holder's successors or assigns, for specific inclusion in such Registration Statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.controls
(f) Nothing contained in this Agreement shall be construed as requiring any Holder the Holder(s) to exercise the their Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(g) The Company shall not permit the inclusion of any securities other than the Warrant Securities to be included in any registration statement filed pursuant to Section 7.3 hereof or permit any other registration statement to be or remain effective during the effectiveness of a registration statement filed pursuant to Section 7.3 hereof (other than (i) shelf registrations effectiveness prior thereto and (ii) registrations on Form S-4 of S-8), without the prior written consent of the Holders of the Warrants and Warrant Securities representing a Majority of such securities (assuming the exercise of all of the Warrants).
(h) The Company shall furnish to each Holder participating in the offering and to each underwriter, if any, a signed counterpart, addressed to such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(j) The Company shall deliver promptly deliver to each Holder participating in the offering requesting the correspondence and memoranda described below and to the managing underwriter, if any, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to registration statement and permit each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. NASD. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.
(k) The Company shall enter into an underwriting agreement with the managing underwriter selected for such underwriting by Holders holding a Majority of the Warrant Securities requested to be included in such underwriting, which may be the Representative. Such agreement shall be satisfactory in form and substance to the Company, each Holder and such managing underwriter, and shall contain such
(l) In addition to the Warrant Securities, upon the written request therefor by any Holder(s), the Company shall include in the registration statement any other securities of the Company held by such Holder(s) as of the date of filing of such registration statement, including without limitation, restricted shares of Common Stock, options, warrants or any other securities convertible into shares of Common Stock.
(m) For purposes of this Agreement, the term "Majority" in reference to the Holders of Warrants or Warrant Securities shall mean in excess of fifty percent (50%) of the then outstanding Warrants or Warrant Securities that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith and (ii) have not been resold to the public pursuant to a registration statement filed with the Commission under the Act. 8. Adjustments to Exercise Price and Number of Securities.
Appears in 1 contract
Samples: Representative's Warrant Agreement (All Tech Investment Group Inc Et Al)
Covenants of the Company With Respect to Registration. The In connection with any registrations under Sections 7(b) and 7(c) hereof, the Company covenants and agrees as follows:
(a1) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than thirty a registration statement within forty-five (3045) business calendar days following of receipt of any demand therefortherefor pursuant to section 7(b); provided, however, that the Company shall not be required to produce audited or unaudited financial statements for any period prior to the date such financial statements are required to be filed in a report on Form 20-F. The Company shall use its best efforts to have any such Registration Statement registration statement declared effective at the earliest possible time, and shall furnish each holder of Holder desiring to sell Registrable Securities such number of prospectuses as shall reasonably be requested.
(b2) The Company shall pay all costscosts (excluding fees and expenses of Holders' counsel and any underwriting discounts or selling fees, expenses or commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements any registration statement filed pursuant to Sections 7.3. 7(b) and 7.4.(a7(c) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7(d), the Company shall, in addition to any other equitable or other relief available to the Holders, be liable for any or all incidental and special damages and damages due to loss of profit sustained by the Holders requesting registration of their Registrable Securities.
(c3) The Company will take all necessary action which may be required in qualifying to qualify or registering register the Registrable Securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolders, provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d4) The Company shall indemnify any holder the Holders of the Registrable Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Securities Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Securities Act, the Exchange Act or otherwise, arising from such registration statement statement, but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth Underwriter contained in Section 7 8 of the Underwriting Agreement Agreement, and the Holders shall indemnify the Company to provide for just the same extent and equitable contribution with the same effect as set forth the provisions pursuant to which the Underwriter has agreed to indemnify the Company contained in Section 8 of the Underwriting Agreement.
(e5) Any holder The Holders of the Registrable Securities to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Securities Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such HolderHolders, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement registration statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth contained in Section 8 of the Underwriting AgreementAgreement pursuant to which the Underwriter has agreed to indemnify the Company.
(f6) Nothing contained in this Agreement shall be construed as requiring any Holder the Holders to exercise their Underwriter's Warrants (or the Warrants held by such Holder purchasable upon exercise thereof) prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(g7) The Company shall not be entitled to include any securities other than the Registrable Securities in any registration statement filed pursuant to Section 7(b) hereof without the prior written consent of the Holders of a Majority of the Registrable Securities.
(8) The Company shall furnish to a designated representative of the Holders participating in the offering and to each underwriter, if any, a signed counterpart, addressed to such Holder or underwriter of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and if such registration relates to an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration relates to an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement (the "Accountants"), in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of the accountants' "cold comfort" letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in "cold comfort" letters, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in "cold comfort" letters delivered to underwriters in underwritten public offerings of securities.
(9) The Company shall as soon as practicable after the effective date of the registration statement make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Securities Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(10) The Company shall deliver promptly deliver to each Holder participating in the offering requesting the correspondence described below and any managing underwriter copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff Accountants with respect to the Registration Statement to registration statement and permit each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"). Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditorsrepresentatives of the Accountants, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.
(11) The Company shall enter into an underwriting agreement with the managing underwriter selected for such underwriting by Holders holding a Majority of the Registrable Securities requested to be included in such underwriting; provided, however, that (i) such managing underwriter shall be reasonably acceptable to the Company, except that in connection with an offering for which the Holders have piggyback rights, the Company shall have the sole right to select the managing underwriter, and (ii) the Holders shall be responsible for any selling fees or commissions in connection with such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, a Majority of such Holders and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders and their intended methods of distribution.
Appears in 1 contract
Samples: Underwriter's Warrant Agreement (Med Emerg International Inc)
Covenants of the Company With Respect to Registration. The In connection with any registration under Sections 7(b) and 7(c) hereof, the Company covenants and agrees as follows:
(a1) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than a registration statement within thirty (30) business days following of receipt of any demand therefor, shall use its best efforts to have any such Registration Statement registration statements declared effective at the earliest possible time, and shall furnish each holder of Registrable Holder desiring to sell Warrant Securities such number of prospectuses as shall reasonably be requested.
(b2) The Company shall pay all costscosts (excluding fees and expenses of Holder(s)' counsel and any underwriting discounts or selling fees, expenses or commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements the first registration statement filed pursuant to Sections 7.3. Section 7(b) and 7.4.(aany registration statement filed pursuant to Section 7(c) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7(d)(1), the Company shall, in addition to any other equitable or other relief available to the Holder(s), be liable for any or all incidental, special and consequential damages and damages due to loss of profit sustained by the Holder(s) requesting registration of their Warrant Securities.
(c3) The Company will take all necessary action which may be required in qualifying to qualify or registering register the Registrable Warrant Securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d4) The Company shall indemnify any holder the Holder(s) of the Registrable Warrant Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth Underwriter contained in Section 7 8 of the Underwriting Agreement Agreement, and the Holder(s) shall indemnify the Company to provide for just the same extent and equitable contribution with the same effect as set forth the provisions pursuant to which the Underwriter has agreed to indemnify the Company contained in Section 8 of the Underwriting Agreement.
(e5) Any holder The Holder(s) of Registrable the Warrant Securities to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such HolderHolders, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement registration statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth contained in Section 8 of the Underwriting AgreementAgreement pursuant to which the Underwriter has agreed to indemnify the Company.
(f6) Nothing contained in this Agreement shall be construed as requiring any Holder the Holder(s) to exercise the their Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(g7) The Company shall not be entitled to include any securities other than the Warrant Securities in any registration statement filed pursuant to Section 7(b) hereof without the prior written consent of the Underwriter and the Holders of the Warrants and Warrant Securities representing a Majority of such securities (assuming exercise of all of the Warrants).
(8) The Company shall furnish to each Holder participating in the offering and to each underwriter, if any, a signed counterpart, addressed to such Holder or underwriter of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent public accounts who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letter, with respects to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in
(9) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(10) The Company shall deliver promptly deliver to each Holder participating in the offering requesting the correspondence described below and any managing underwriter copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to registration statement and permit each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"). Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.
(11) The Company shall enter into an underwriting agreement with the managing underwriter selected for such underwriting by Holders holding a Majority of the Warrant Securities requested to be included in such underwriting, except that in connection with an offering for which the Holders have piggyback rights, the Company shall have the sole right to select the managing underwriter. Such underwriting agreement shall be satisfactory in form and substance to the Company, a Majority of such Holders and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Securities and may, at their option, require that any or all the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders and their intended methods of distribution.
(12) For purposes of this Agreement, the term "Majority" in reference to the Holders of the Warrants or Warrant Securities, shall mean in excess of fifty percent (50%) of the then outstanding Warrants or Warrant Securities that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction there- with, or (ii) have not been resold to the public pursuant to a registration statement filed with the Commission under the Act.
Appears in 1 contract
Samples: Underwriter's Warrant Agreement (Worldwide Entertainment & Sports Corp)
Covenants of the Company With Respect to Registration. The In connection with any registration under Sections 9.2 or 9.3 hereof, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than thirty a registration statement within ninety (3090) business days following of receipt of any demand therefor, shall use its best efforts and to have any such Registration Statement registration statements declared effective at the earliest possible time, and shall furnish each holder of Registrable Securities Holder desiring to sell Warrant Shares such number of prospectuses as shall reasonably be requestedrequested and shall maintain the effectiveness of such registration statement for a period of at least twelve (12) months. Notwithstanding the foregoing sentence, the Company shall be entitled one time only to postpone the filing of any registration statement otherwise required to be prepared and filed by it pursuant to this Section 9.4(a) if the Company is (i) publicly committed to a self-tender or exchange offer and the filing of a registration statement would cause a violation of Regulation M under the Securities Exchange Act of 1934, as amended (the "Exchange Act") or (ii) involved in negotiating or consummating an acquisition or merger which would make such registration impracticable, in either of which cases the filing of the registration statement may be delayed for a period of up to 60 days. The Company shall promptly deliver to the Holders a written notice of postponement, which notice shall specifically set forth the reason for such postponement. Following the delivery of such notice, the Company shall be required to file the postponed registration statement upon the earlier of (i) the consummation or termination, as applicable, of the event requiring such postponement (ii) 60 days after delivery of the aforementioned notice.
(b) The Company shall pay all costscosts (excluding fees and expenses of Holder(s)' counsel and any underwriting or selling commissions, and excluding roadshow expenses if the only shares to be registered in such Registration Statement are Warrant Shares), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. 9.2 and 7.4.(a9.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. The Holder(s) will pay all costs, fees and expenses (including those of the Company)in connection with the registration statement filed pursuant to Section 9.3(c).
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Warrant Shares included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder of the Registrable Securities Holder(s)of the Warrant Shares to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage, expense or liability (including liability(including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify each of the Underwriters as set forth contained in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.
(e) Any holder The Holder(s) of Registrable Securities the Warrant Shares to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished in writing by or on behalf of such HolderHolders, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement registration statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth contained in Section 7 of the Underwriting Agreement and pursuant to provide for just and equitable contribution as set forth in Section 8 of which the Underwriting AgreementUnderwriter has agreed to indemnify the Company.
(f) Nothing contained in this Agreement shall be construed as requiring any Holder the Holder(s) to exercise the Warrants held by such Holder their Underwriter's Warrant prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(g) The Company shall promptly deliver copies not permit the inclusion of all correspondence between any securities other than the Commission Warrant Shares to be included in any registration statement filed pursuant to Section 9.3 hereof, or permit any other registration statement to be or remain effective during the effectiveness of a registration statement filed pursuant to Section 9.3 hereof (other than registration statements filed prior to an exercise of registration rights by a Holder of Underwriter's Warrants and/or Warrant Shares pursuant to Section 9.2 hereof), without the prior written consent of Xxxxxxxx or as otherwise required by the terms of any existing registration rights granted prior to the date of this Agreement by the Company to the holders of any of the Company's securities.
(h) In the event of an underwritten offering, the Company shall furnish to each Holder participating in the offering and to each underwriter a signed counterpart, addressed to such Holder or underwriter, of (i) an opinion of counsel to the Company, its counsel or auditors dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and all memoranda relating to discussions with (ii) a "cold comfort" letter dated the Commission or its staff effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the Registration Statement to each Holder prospectus included therein) and, in the case of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance noticeaccountants' letter, with respect to information events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(j) The Company shall enter into an underwriting agreement with the managing underwriters (in the case of registration rights exercised pursuant to Section 9.3 hereof, selected for such underwriting by Holders holding a Majority of the Warrant Shares requested to be included in such underwriting, which may be the Representative). Such agreement shall be satisfactory in form and substance to the Company, each Holder and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Shares and may, at their option, require that any or omitted from all the Registration Statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealersrepresentations, Inc. Such investigation shall include access to books, records warranties and properties and opportunities to discuss the business covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with its officers and independent auditors, all the Company or the underwriters except as they may relate to such reasonable extent Holders and at such reasonable times and their intended methods of distribution.
(k) For purposes of this Agreement, the term "Majority" in reference to the Underwriter's Warrants or Warrant Shares shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants or Warrant Shares that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as often as any such Holder nominees or managing underwriter shall reasonably requestin conjunction therewith or (ii) have not been resold to the public pursuant to a registration statement filed with the Commission under the Act.
Appears in 1 contract
Samples: Underwriter's Warrant Agreement (Art Renaissance Inc)
Covenants of the Company With Respect to Registration. The In connection with any registration under Sections 9.2 or 9.3 hereof, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than thirty a registration statement within ninety (3090) business days following of receipt of any demand therefor, shall use its best efforts and to have any such Registration Statement registration statements declared effective at the earliest possible time, and shall furnish each holder of Registrable Securities Holder desiring to sell Warrant Shares such number of prospectuses as shall reasonably be requestedrequested and shall maintain the effectiveness of such registration statement for a period of at least twelve (12) months. Notwithstanding the foregoing sentence, the Company shall be entitled one time only to postpone the filing of any registration statement otherwise required to be prepared and filed by it pursuant to this Section 9.4(a) if the Company is (i) publicly committed to a self-tender or exchange offer and the filing of a registration statement would cause a violation of Regulation M under the Securities Exchange Act of 1934, as amended (the "Exchange Act") or (ii) involved in negotiating or consummating an acquisition or merger which would make such registration impracticable, in either of which cases the filing of the registration statement may be delayed for a period of up to 60 days. The Company shall promptly deliver to the Holders a written notice of postponement, which notice shall specifically set forth the reason for such postponement. Following the delivery of such notice, the Company shall be required to file the postponed registration statement upon the earlier of (i) the consummation or termination, as applicable, of the event requiring such postponement (ii) 60 days after delivery of the aforementioned notice.
(b) The Company shall pay all costscosts (excluding fees and expenses of Holder(s)' counsel and any underwriting or selling commissions, and excluding roadshow expenses if the only shares to be registered in such Registration Statement are Warrant Shares), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. 9.2 and 7.4.(a9.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. The Holder(s) will pay all costs, fees and expenses (including those of the Company)in connection with the registration statement filed pursuant to Section 9.3(c).
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Warrant Shares included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder of the Registrable Securities Holder(s)of the Warrant Shares to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage, expense or liability (including liability(including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify each of the Underwriters as set forth contained in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.
(e) Any holder The Holder(s) of Registrable Securities the Warrant Shares to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished in writing by or on behalf of such HolderHolders, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement registration statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth contained in Section 7 of the Underwriting Agreement and pursuant to provide for just and equitable contribution as set forth in Section 8 of which the Underwriting AgreementUnderwriter has agreed to indemnify the Company.
(f) Nothing contained in this Agreement shall be construed as requiring any Holder the Holder(s) to exercise the their Representatives' Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(g) The Company shall promptly deliver copies not permit the inclusion of all correspondence between any securities other than the Commission Warrant Shares to be included in any registration statement filed pursuant to Section 9.3 hereof, or permit any other registration statement to be or remain effective during the effectiveness of a registration statement filed pursuant to Section 9.3 hereof (other than registration statements filed prior to an exercise of registration rights by a Holder of Representatives' Warrants and/or Warrant Shares pursuant to Section 9.2 hereof), without the prior written consent of Xxxxxxxx or as otherwise required by the terms of any existing registration rights granted prior to the date of this Agreement by the Company to the holders of any of the Company's securities.
(h) In the event of an underwritten offering, the Company shall furnish to each Holder participating in the offering and to each underwriter a signed counterpart, addressed to such Holder or underwriter, of (i) an opinion of counsel to the Company, its counsel or auditors dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and all memoranda relating to discussions with (ii) a "cold comfort" letter dated the Commission or its staff effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the Registration Statement to each Holder prospectus included therein) and, in the case of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance noticeaccountants' letter, with respect to information events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(j) The Company shall enter into an underwriting agreement with the managing underwriters (in the case of registration rights exercised pursuant to Section 9.3 hereof, selected for such underwriting by Holders holding a Majority of the Warrant Shares requested to be included in such underwriting, which may be the Representative). Such agreement shall be satisfactory in form and substance to the Company, each Holder and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Shares and may, at their option, require that any or omitted from all the Registration Statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealersrepresentations, Inc. Such investigation shall include access to books, records warranties and properties and opportunities to discuss the business covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with its officers and independent auditors, all the Company or the underwriters except as they may relate to such reasonable extent Holders and at such reasonable times and their intended methods of distribution.
(k) For purposes of this Agreement, the term "Majority" in reference to the Representatives' Warrants or Warrant Shares shall mean in excess of fifty percent (50%) of the then outstanding Representatives' Warrants or Warrant Shares that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as often as any such Holder nominees or managing underwriter shall reasonably requestin conjunction therewith or (ii) have not been resold to the public pursuant to a registration statement filed with the Commission under the Act.
Appears in 1 contract
Samples: Representatives' Warrant Agreement (Infinite Technology Group LTD)
Covenants of the Company With Respect to Registration. The In connection with any registration under Section 7.2 or 7.3 hereof, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than thirty a registration statement within _________ (30____) business days following of receipt of any demand thereforpursuant to Section 7.3, shall use its best efforts to have any such Registration Statement registration statements declared effective at the earliest possible time, and shall furnish each holder of Registrable Holder desiring to sell Warrant Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costscosts (excluding transfer taxes, if any, and fees and expenses of Holder(s)' counsel and any underwriting or selling commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. 7.2 and 7.4.(a7.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. The Holder(s) will pay all costs, fees and expenses in connection with any registration statement filed pursuant to Section 73(c). If the Company shall fail to comply with the provisions of Section 7.4(a), the Company shall, in addition to any other equitable or other damages or relief available to the Holder(s), be liable for any or all incidental, special and consequential damages and damages due to loss of profit sustained by the Holder(s) requesting registration of their Warrant Securities.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder the Holder(s) of the Registrable Warrant Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Securities Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Securities Act, the Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth contained in Section 8 of the Underwriting Agreement.
(e) Any holder of Registrable Securities to be sold pursuant to a Registration Statement, and such Holder's successors and assigns, The Company shall severally, and not jointly, indemnify, require the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoeverHolder(s) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such Holder, or such Holder's successors or assigns, for specific inclusion in such Registration Statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.
(f) Nothing contained in this Agreement shall be construed as requiring any Holder to exercise the their Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(f) The Company shall not permit the inclusion of any securities other than the Warrant Securities to be included in the registration statement filed pursuant to Section 7.3(a) hereof, without the prior written consent of the Holders of Warrants and/or Warrant Securities representing more than _____% of such securities at that time outstanding (assuming the exercise of all of the Warrants).
(g) The Company shall furnish to the Representative on behalf of each Holder participating in the offering and to the managing underwriter, if any, a signed counterpart, addressed to the Representative on behalf of each such Holder and to the managing underwriter, if any, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement if there is no managing underwriter or the date of the closing under the underwriting agreement if there is a managing underwriter, and (ii) a "cold comfort" letter, dated the effective date of such registration statement and the date of the closing under the underwriting agreement if there is a managing underwriter, signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(h) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Securities Act) an earnings statement (which need not be audited) complying with Section 11 (a) of the Securities Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(i) The Company shall deliver promptly deliver to each Holder who so requests and the managing underwriter, if any, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement any registration statement filed pursuant to this Agreement, and permit each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that who so requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"). Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such each Holder or and the managing underwriter shall reasonably request.
(j) With respect to a registration statement filed pursuant to Section 7.3, -the Company shall enter into an underwriting agreement with the managing underwriter selected for such underwriting by Holders holding a majority of the Warrant Securities requested to be included in such underwriting. Such agreement shall be satisfactory in form and substance to the Company, each Holder and such managing underwriter, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Securities and may, at their option, require that any or all of the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders and their intended methods of distribution.
Appears in 1 contract
Samples: Warrant Agreement (Chipcards Inc)
Covenants of the Company With Respect to Registration. The In connection with any registration under Sections 7.3 and 7.4 hereof, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than a registration statement within thirty (30) business days following of receipt of any demand therefor, shall use its best efforts to have any such Registration Statement declared effective at the earliest possible time, and shall furnish each holder of Registrable Securities such number of prospectuses as shall reasonably be requested.registration
(b) The Company shall pay all costscosts (excluding fees and expenses of Holder(s)' counsel and any underwriting or selling commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. 7.3 and 7.4.(a) 7.4 hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.5(a), the Company shall, in addition to any other equitable or other relief available to the Holder(s), extend the exercise period of the Warrants by such number of days as shall equal the delay caused by the Company's failure. addition to any other equitable or other relief available to the Holder(s), extend the exercise period of the Warrants by such number of days as shall equal the delay caused by the Company's failure.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securities, Holder(s); provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder the Holder(s) of the Registrable Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify each of the Underwriters as set forth contained in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.
(e) Any holder The Holder(s) of the Registrable Securities to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such Holder, or such Holder's successors or assigns, for specific inclusion in such Registration Statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.or
(f) Nothing contained in this Agreement For a period of one hundred eighty (180) days after the effectiveness of any registration statement filed pursuant to Section 7.4 hereof, the Company shall be construed as requiring not permit any Holder to exercise the Warrants held by such Holder prior other registration statement (other than (1) a registration statement relating to the initial filing securities for which the Company has granted demand registration rights, as described in the Prospectus included in the Registration Statement, (2) a registration statement relating to the shares of any Common Stock issuable upon exercise of the Redeemable Warrants issued to the public pursuant to the Registration Statement, (3) a registration statement relating to the securities for which the Company has granted piggyback registration rights, as described in the Prospectus included in the Registration Statement and (4) a registration statement filed on Forms S-4 or S-8) to be or remain effective during the effectiveness thereofof a registration statement filed pursuant to Section 7.4 hereof, without the prior written consent of the Holders of the Registrable Securities representing a Majority of such securities.
(g) The Company shall furnish to each Holder participating in the offering and to each underwriter, if any, a signed counterpart, addressed to such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to
(h) The Company shall as soon as practicable after the effective date of any registration statement filed pursuant to Sections 7.3 and 7.4 hereof, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(i) The Company shall deliver promptly deliver to each Holder participating in the offering requesting the correspondence and memoranda described below and to the managing underwriters, copies of all written correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to registration statement and permit each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter underwriters to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. NASD. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.
(j) With respect to any registration under Section 7.4 hereof, the Company shall enter into an underwriting agreement with the managing underwriter selected for such underwriting by the Initiating Holders or the Paying Holders, as the case may be, which may be the Underwriter. Such agreement shall be satisfactory in form and substance to the Company, each Holder and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters, except as they may relate to such Holders and their intended methods of distribution.
(k) For purposes of this Agreement, the term "Majority" in reference to the Holders of Registrable Securities, shall mean in excess of fifty percent (50%) of the then outstanding Warrants, Shares, Underlying Warrants and/or shares of Common Stock issued upon exercise of the Underlying Warrants that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith and (ii) have not been resold to the public pursuant to a registration statement filed with the Commission under the Act.
Appears in 1 contract
Samples: Underwriter's Warrant Agreement (Robotic Lasers Inc)
Covenants of the Company With Respect to Registration. The In connection with any registration under Sections 7.3 and 7.4 hereof, the Company covenants and agrees as follows:
(a1) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than thirty a registration statement within sixty (3060) business days following of receipt of any demand therefor, shall use its best efforts to have any such Registration Statement registration statements declared effective at the earliest possible time, and shall furnish each holder of Holder desiring to sell Registrable Securities such number of prospectuses as shall reasonably be requested.
(b2) The Company shall pay all costscosts (excluding fees and expenses of Holder(s)' counsel and any underwriting or selling commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. 7.3 and 7.4.(a) 7.4 hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.5(a), the Company shall, in addition to any other equitable or other relief available to the Holder(s), extend the exercise period of the Underwriters Warrants by such number of days as shall equal the delay caused by the Company's failure.
(c3) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securities, Holder(s); provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d4) The Company shall indemnify any holder the Holder(s) of the Registrable Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth Underwriter contained in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.
(e5) Any holder The Holder(s) of the Registrable Securities to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange exchange Act or otherwise, arising from information furnished by or on behalf of such HolderHolders, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement registration statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth contained in Section 7 of the Underwriting Agreement and pursuant to provide for just and equitable contribution as set forth in Section 8 of which the Underwriting AgreementUnderwriter has agreed to indemnify the Company.
(f6) Nothing contained For a period of one hundred eighty (180) days after the effectiveness of any registration statement filed pursuant to Section 7.4 hereof, the Company shall not permit any other registration statement (other than (1) a registration statement relating to the securities for which the Company has granted demand registration rights, as described in this Agreement shall be construed as requiring any Holder the Prospectus included in the Registration Statement, (2) a registration statement relating to the shares of Common Stock issuable upon exercise of the Warrants held by such Holder prior issued to the initial filing of any public pursuant to the Registration Statement, (3) a registration statement relating to the securities for which the Company has granted piggyback registration rights, as described in the Prospectus included in the Registration Statement and (4) a registration statement filed on Forms S-4 or S-8 to be or remain effective during the effectiveness thereofof a registration statement filed pursuant to Section 7.4 hereof, without the prior written consent of the Holders of the Xxxx xxxxxxx Securities representing a Majority of such securities.
(g7) The Company shall furnish upon request to each Holder participating in the offering and to each underwriter, if any, a signed counterpart, addressed to such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a cold comfort letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with resp ect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(8) The Company shall as soon as practicable after the effective date of any registration statement filed pursuant to Sections 7.3 and 7.4 hereof, and in any event within 15 months thereafter, make generally available to its security holders (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(9) The Company shall deliver promptly deliver to each Holder participating in the offering requesting the correspondence and memoranda described below and to the managing underwriters, copies of all written correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to registration statement and permit each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter underwriters to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. NASD. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.
(10) With respect to any registration under Section 7.4 hereof, the Company shall enter into an underwriting agreement with the managing underwriter selected for such underwriting by the Initiating Holders or the Paying Holders, as the case may be. Such agreement shall be satisfactory in form and substance to the Company, each Holder and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with t he Company or the underwriters, except as they may relate to such Holders and their intended methods of distribution.
(11) For purposes of this Agreement, the term Majority in reference to the Holders of Registrable Securities, shall mean in excess of fifty percent (50%) of the then outstanding Underwriters Warrants and/or shares of Common Stock issuable upon exercise of the Underwriters Warrants that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith and (ii) have not been resold to the public pursuant to a registration statement filed with the Commission under the Act.
(12) Nothing contained in this Agreement shall be construed as requiring the Holder(s) to exercise their Underwriters Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(13) In addition to the Registrable Securities, upon the written request therefor, by any Holder(s), the Company shall include in the registration statement any other securities of the Company held by such Holder(s) as of the date of filing of such registration statement, including without limitation restricted shares of Common Stock, options, warrants or any other securities convertible into shares of Common Stock.
Appears in 1 contract
Covenants of the Company With Respect to Registration. The In connection with any registrations under Sections 6.2 and 6.3 hereof, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the 6.4.1 The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than a registration statement within thirty (30) business calendar days following of receipt of any demand therefortherefor pursuant to Section 6.2; PROVIDED, HOWEVER, that the Company shall not be required to produce audited or unaudited financial statements for any period prior to the date such financial statements are required to be filed in a report on Form 10-K or Form 10-Q, as the case may be. The Company shall use its best efforts to have any such Registration Statement registration statement declared effective at the earliest possible time, and shall furnish each holder of Registrable Holder desiring to sell Underwriters' Securities such number of prospectuses as shall reasonably be requested.
(b) 6.4.2 The Company shall pay all costscosts (excluding fees and expenses of Holder's counsel and any underwriting discounts or selling fees, expenses, or commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements any registration statement filed pursuant to Sections 7.3. 6.2 and 7.4.(a) 6.3 hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees (if any) and expenses.
(c) 6.4.3 The Company will take all necessary action which may be required in qualifying use its best efforts to qualify or registering register the Registrable Underwriters' Securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolders, provided PROVIDED that the Company shall not be obligated by reason hereof to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) 6.4.4 The Company shall indemnify any holder the Holders of the Registrable Underwriters' Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.
(e) Any holder of Registrable Securities to be sold pursuant to a Registration Statement, and such Holder's successors and assigns, shall severally, and not jointly, indemnify, the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such Holder, or such Holder's successors or assigns, for specific inclusion in such Registration Statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.
(f) Nothing contained in this Agreement shall be construed as requiring any Holder to exercise the Warrants held by such Holder prior to the initial filing of any Registration Statement or the effectiveness thereof.
(g) The Company shall promptly deliver copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.of
Appears in 1 contract
Samples: Underwriters' Warrant Agreement (Infohighway Communications Corp)
Covenants of the Company With Respect to Registration. The In connection with any registration under Section (8) or (9) hereof, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than a registration statement within thirty (30) business days following of receipt of any demand therefor, shall use its best efforts to have any such Registration Statement registration statement declared effective at the earliest possible time, and shall furnish each holder of Registrable Holder desiring to sell Warrant Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costscosts (excluding fees and expenses of Holder(s)' counsel and any underwriting or selling commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. (h), (i) and 7.4.(a(j) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section (10)(a), the Company shall, in addition to any other equitable or other relief available to the Holder(s), extend the Exercise Period by such number of days as shall equal the delay caused by the Company's failure.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as are reasonably requested by the holders of such securitiesHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder the Holder(s) of the Registrable Warrant Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), from and against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth Underwriter contained in Section 7 of the Underwriting Agreement and relating to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreementoffering.
(e) Any holder The Holder(s) of Registrable the Warrant Securities to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such HolderHolders, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement registration statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth contained in Section 7 of the Underwriting Agreement and pursuant to provide for just and equitable contribution as set forth in Section 8 of which the Underwriting AgreementUnderwriter has agreed to indemnify the Company.
(f) Nothing contained in this Agreement shall be construed as requiring any Holder to The Holder(s) may exercise the their Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(g) The Company shall promptly deliver copies not permit the inclusion of all correspondence between any securities other than the Commission and the Company, its counsel or auditors and all memoranda relating Warrant Securities to discussions with the Commission or its staff with respect to the Registration Statement to each Holder of Registrable Securities be included for in any registration in such Registration Statement statement filed pursuant to Section 7.3 (9) hereof, or permit any other registration statement to be or remain effective during the effectiveness of a registration statement filed pursuant to Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter(9) hereof, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.other than a
Appears in 1 contract
Samples: Warrant Agreement (American Eagle Motorcycle Co Inc)
Covenants of the Company With Respect to Registration. The In connection with any registration under Section 7.2 or 7.3 hereof, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than a registration statement within thirty (30) business days following of receipt of any demand therefor, shall use its best efforts to have any such Registration Statement registration statement declared effective at the earliest possible time, and shall furnish each holder of Registrable Securities Holder desiring to sell Units underlying the Representative's Purchase Options, such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costscosts (excluding fees and expenses of Holder(s) counsel and any underwriting or selling commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. 7.2 and 7.4.(a7.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. The Holder(s) will pay all costs, fees and expenses in connection with any registration statement filed pursuant to Section 7.3(c). If the Company shall fail to comply with the provisions of Section 7.4(a), the Company shall, in addition to any other equitable or other relief available to the Holder(s), be liable for any or all incidental, special and consequential damages and damages due to loss of profit sustained by the Holder(s) requesting registration of their securities hereunder.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Units (inclusive of the Shares, Warrants and Warrant Shares underlying the Units) underlying the Representative's Purchase Options included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder the Holder(s) of the Registrable Securities Units underlying same to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth Representative contained in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.
(e) Any holder The Holder(s) of Registrable Securities the Units underlying the Representative's Purchase Options to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such HolderHolders, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement registration statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth contained in Section 7 of the Underwriting Agreement and pursuant to provide for just and equitable contribution as set forth in Section 8 of which the Underwriting AgreementRepresentative has agreed to indemnify the Company.
(f) Nothing contained in this Agreement shall be construed as requiring any Holder the Holder(s) to exercise the Warrants held by such Holder their Representative's Purchase Options prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(g) The Company shall not permit the inclusion of any securities other than the Units underlying the Representative's Purchase Options to be included in any registration statement filed pursuant to Section 7.3 hereof, or permit any other registration statement to be or remain effective during the effectiveness of a registration statement filed pursuant to Section 7.3 hereof, without the prior written consent of the Holders of the Representative's Purchase Options and Units underlying same representing a Majority of such securities.
(h) The Company shall furnish to each Holder participating in the offering and to each underwriter, if any, a signed counterpart, addressed to such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, have made "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(j) The Company shall deliver promptly deliver to each Holder participating in the offering requesting the correspondence and memoranda described below, and the managing underwriters, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to registration statement and permit each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"). Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.
(k) The Company shall enter into an underwriting agreement with the managing underwriters selected for such underwriting by Holders holding a Majority of the Units underlying same requested to be included in such underwriting. Such agreement shall be satisfactory in form and substance to the Company, each Holder and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Units underlying same and may, at their option, require that any or all the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders, their intended methods of distribution, and except for matters related to disclosures with respect to such Holders, contained or required to be contained, in such registration statement under the Act and the rules and regulations thereunder.
(1) For purposes of this Agreement, the term "Majority" in reference to the Holders of Representative's Purchase Options, shall mean in excess of fifty percent (50%) of the then outstanding Representative's Purchase Options assuming full exercise thereof that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their families, persons acting as nominees or in conjunction therewith or (ii) have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Samples: Representative's Purchase Option Agreement (Sportstrac Inc)
Covenants of the Company With Respect to Registration. The In connection with any registrations under Sections 8(a) and 8(b) hereof, the Company covenants and agrees as follows:
(a1) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than thirty a registration statement within ninety (3090) business calendar days following of receipt of any demand therefortherefor pursuant to Section 8(a); provided, however, that the Company shall not be required to produce audited or unaudited financial statements for any period prior to the date such financial statements are required to be filed in a report on Form 10-KSB or Form 10-QSB, as the case may be. The Company shall use its best efforts to have any such Registration Statement registration statement declared effective at the earliest possible time, and to maintain the effectiveness of such Registration Statement for nine (9) months thereafter or until the registered securities are sold, whichever is earlier, and shall furnish each holder of Holder desiring to sell Registrable Securities such number of prospectuses as shall reasonably be requested.
(b2) The Company shall pay all costscosts (excluding fees and expenses of Holders' counsel and any underwriting discounts or selling fees, expenses or commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements any registration statement filed pursuant to Sections 7.3. 8(a) and 7.4.(a8(b) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 8(c), the Company shall, in addition to any other equitable or other relief available to the Holders, be liable for any or all incidental and special damages sustained by the Holders requesting registration of their Registrable Securities.
(c3) The Company will take all necessary action which may be required in qualifying to qualify or registering register the Registrable Securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolders, provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d4) The Company shall indemnify any holder the Holders of the Registrable Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Securities Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement statement, but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify each member of the Underwriters as set forth Syndicate contained in Section 7 8 of the Underwriting Agreement Agreement, and the Holders shall indemnify the Company to provide for just the same extent and equitable contribution with the same effect as set forth the provisions pursuant to which the members of the Syndicate have agreed to indemnify the Company contained in Section 8 of the Underwriting Agreement.
(e5) Any holder The Holders of the Registrable Securities to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such HolderHolders, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement registration statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth contained in Section 8 of the Underwriting AgreementAgreement pursuant to which the members of the Syndicate have agreed to indemnify the Company.
(f6) Nothing contained in this Agreement shall be construed as requiring any Holder the Holders to exercise their Underwriter's Warrants (or the Warrants held by such Holder purchasable upon exercise thereof) prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(g7) The Company shall not be entitled to include any securities other than the Registrable Securities in any registration statement filed pursuant to Section 8(a) hereof without the prior written consent of the Holders of a Majority of the Registrable Securities.
(8) The Company shall furnish to a designated representative of the Holders participating in the offering and to each underwriter, if any, a signed counterpart, addressed to such Holder or underwriter of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and if such registration relates to an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration relates to an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement (the "Accountants"), in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of the Accountants' "cold comfort" letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in "cold comfort" letters delivered to underwriters in underwritten public offerings of securities.
(9) The Company shall as soon as practicable after the effective date of the registration statement make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(10) The Company shall deliver promptly deliver to each Holder participating in the offering requesting the correspondence described below and any managing underwriters copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff Accountants with respect to the Registration Statement to registration statement and permit each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"). Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditorsrepresentatives of the Accountants, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.
(11) The Company shall enter into an underwriting agreement with the managing underwriters selected for such underwriting by Holders holding a Majority of the Registrable Securities requested to be included in such underwriting; provided, however, that (i) such managing underwriters shall be reasonably acceptable to the Company, except that in connection with an offering for which the Holders have piggyback rights, the Company shall have the sole right to select the managing underwriters, and (ii) the Holders shall be responsible for any selling fees or commissions in connection with such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, a Majority of such Holders and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders and their intended methods of distribution.
Appears in 1 contract
Samples: Underwriter's Warrant Agreement (International Plastic Technologies Inc)
Covenants of the Company With Respect to Registration. The In connection with each registration under Section 7.3 or 7.4 hereof, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than a registration statement within thirty (30) business days following of receipt of any demand therefor, shall use its best efforts to have any such Registration Statement registration statements declared effective at the earliest possible time, and shall furnish each holder of desiring to sell Registrable Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costscosts (excluding fees and expenses of Holder(s)' counsel and any underwriting or selling commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements filed registration statements flied pursuant to Sections 7.3. 7.3 and 7.4.(a) 7.4 hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company fails to comply with the provisions of Section 7.5(a), the Company shall, in addition to any other equitable or other relief available to the Holder(s), extend the exercise period of each Representative's Warrant and Underlying Warrant by such number of days as shall equal the delay caused by the Company's failure.
(c) The Company will shall take all necessary action which may be required in qualifying or registering the Registrable Securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolder(s); provided, provided however, that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder the Holder(s) of the Registrable Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), against any and all losslosses, claimdamages, damagesuits, expense or liability actions, claims, liabilities and expenses (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they or any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement statement, but only to the same extent and with the same effect as the provisions pursuant to which indemnification provided by the Company has agreed to indemnify the Underwriters as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.
(e) Any holder The Holder(s) of the Registrable Securities to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against any and all losslosses, claimdamages, damage or expense or liability liabilities, suits, actions, claims, liabilities and expenses (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such Holder, Holders or such Holder's their successors or assigns, for specific inclusion in such Registration Statement registration statement to the same extent and with the same effect as the provisions pursuant to which indemnification provided by the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.
(f) Nothing contained in this Agreement For a period of one hundred eighty (180) days after the effectiveness of any registration statement filed pursuant to Section 7.4 hereof, the Company shall be construed as requiring not permit any Holder to exercise the Warrants held by such Holder prior other registration statement (other than (i) a registration statement relating to the initial filing securities for which the Company has granted demand registration rights, as described in the Prospectus included in the Registration Statement, (ii) a registration statement relating to the Shares and the shares issuable upon exercise of any the Public Warrants, (iii) a registration statement relating to the securities for which the Company has granted piggyback registration rights, as described in the Prospectus included in the Registration Statement and (iv) a registration statement filed on Forms S-4 or S-8) to be or remain effective during the effectiveness thereofof a registration statement filed pursuant to Section 7.4 hereof, without the prior written consent of the holders of the Registrable Securities representing a Majority of such Securities.
(g) The Company shall furnish to each holder participating in a registration and to each underwriter, if any, a signed counterpart, addressed to such Holder or underwriters, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a cold comfort letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus include therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(h) The Company shall as soon as practicable after the effective date of any registration statement filed pursuant to Section 7.3 or 7.4 hereof, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying the Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(i) The Company shall deliver promptly deliver to each holder participating in the offering requesting the correspondence and memoranda described below and to the managing underwriters, copies of all written correspondence between the Commission and the Companycompany, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to registration statement and permit each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter underwriters to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. NASD. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder holder or managing underwriter shall reasonably request.
(j) With respect to any registration under Section 7.4 hereof, the Company shall enter into an underwriting agreement with the managing underwriter or representative of the underwriters selected for such underwriting by the Initiating Holders or the Paying Holders, as the case may be, which may be the Representative. Such agreement shall be satisfactory in form and substance to the Company, each Holder and the Representative or such managing underwriters, as the case may be, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter or the representative, as the case may be. The holders shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company, the underwriters or their representative, except to the extent that such representations or warranties relate to such Holders and their intended methods of distribution.
(k) For purposes of this Agreement, the term "Majority" in reference to the holders of Registrable Securities, shall mean in excess of fifty percent (50%) of the then outstanding Shares and Underlying Warrants included in the Units and/or Warrant Shares that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates or family members, persons acting as nominees or in conjunction with any of the foregoing and (ii) have not been resold to the public pursuant to a registration statement filed with the Commission under the Act.
Appears in 1 contract
Samples: Representative's Warrant (C W Chemica Waste Technologies)
Covenants of the Company With Respect to Registration. The In connection with any registration under Sections 7.2 or 7.3 hereof, and except as otherwise provided in this Agreement, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than a registration statement within thirty (30) business days following of receipt of any demand therefor, shall use its best efforts to have any such Registration Statement registration statements declared effective at the earliest possible time, and shall furnish each holder of Registrable Securities Holder desiring to sell Warrant Shares such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costscosts (excluding fees and expenses of Holder(s) counsel and any underwriting or selling commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. 7.2 and 7.4.(a7.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. The participating Holder(s) will pay all costs, fees and expenses in connection with any registration statement filed pursuant to Section 7.3(c). If the Company shall fail to comply with its obligations under Section 7.4(a), the Underwriter and the Holder(s) shall be entitled to seek equitable or other relief available.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Warrant Shares included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder and hold harmless the Holder(s) of the Registrable Securities Warrant Shares to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holder(s) within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), from and against any and all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth Underwriter contained in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.
(e) Any holder The Holder(s) of Registrable Securities the Warrant Shares to be sold pursuant to a Registration Statementregistration statement, and such Holder's its successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such HolderHolder(s), or such Holder's its successors or assigns, for specific inclusion in such Registration Statement registration statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth contained in Section 7 of the Underwriting Agreement and pursuant to provide for just and equitable contribution as set forth in Section 8 of which the Underwriting AgreementUnderwriter has agreed to indemnify the Company.
(f) Nothing contained in this Agreement shall be construed as requiring any Holder the Holder(s) to exercise the its Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(g) The Company shall not permit the inclusion of any securities other than the Warrant Shares to be included in any registration statement filed pursuant to Section 7.3 hereof, or permit any other registration statement to be or remain effective during the effectiveness of a registration statement filed pursuant to Section 7.3 hereof, without the prior written consent of the Holder(s) of the Warrants and Shares representing a Majority of such securities.
(h) The Company shall furnish to each Holder participating in the offering and to each underwriter, if any, a signed counterpart, addressed to such Holder or underwriter, of (i) opinion of counsel to the Company, dated the effective date of such registration stateme6t (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11 (a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(j) The Company shall deliver promptly deliver to each Holder participating in the offering requesting the correspondence and memoranda described below and to the managing underwriters, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to registration statement and permit each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or the rules and regulations of the National Association of Securities Dealers, Inc. NASD. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.
(k) In connection with an underwritten offering pursuant to Section 7.3, the Company shall enter into an underwriting agreement with the managing underwriter(s) selected for such underwriting by Holders holding a Majority of the Warrant Shares requested to be included in such underwriting, which may be the Underwriter. Such agreement shall be reasonably satisfactory in form and substance to the Company, each Holder and such managing underwriter(s), and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter(s). The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Shares and may, at their option, require that any or all of the representations, warranties and covenants of the Company to or for the benefit of such underwriter(s) shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriter(s) except as they may relate to such Holders and their intended methods of distribution.
(l) In addition to the Warrant Shares, upon the written request therefor by any Holder(s), the Company shall include in the registration statement any other securities of the Company held by such Holder(s) as of the date of filing of such registration statement, including, without limitation, restricted shares of Common Stock, options, warrants or any other securities convertible into Common Stock.
(m) For purposes of this Agreement, the term "Majority" in reference to the Holders of Warrants or Warrant Shares, shall mean in excess of fifty percent (50%) of the then outstanding Warrants or Warrant Shares that (i) are not held by the Company, an affiliate, officer, director, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith and (ii) have not been resold to the public pursuant to a registration statement filed with the Commission under the Act.
Appears in 1 contract
Samples: Underwriter's Warrant Agreement (Ronnybrook Farm Dairy Inc)
Covenants of the Company With Respect to Registration. The In connection with any registration under Section (8) or (9) hereof, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than a registration statement within thirty (30) business days following of receipt of any demand therefor, shall use its best efforts to have any such Registration Statement registration statement declared effective at the earliest possible time, and shall furnish each holder of Registrable Holder desiring to sell Warrant Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costscosts (excluding fees and expenses of Holder(s)' counsel and any underwriting or selling commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. (h), (i) and 7.4.(a(j) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section (10)(a), the Company shall, in addition to any other equitable or other relief available to the Holder(s), extend the Exercise Period by such number of days as shall equal the delay caused by the Company's failure.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in the Registration Statement a registration statement for offering and sale resale under the securities or blue sky laws of such states as are reasonably requested by the holders of such securitiesHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder the Holder(s) of the Registrable Warrant Securities to be sold resold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), from and against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth Underwriter contained in Section 7 of the Underwriting Agreement and relating to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreementoffering.
(e) Any holder The Holder(s) of Registrable the Warrant Securities to be sold resold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such HolderHolders, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement registration statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth contained in Section 7 of the Underwriting Agreement and pursuant to provide for just and equitable contribution as set forth in Section 8 of which the Underwriting AgreementUnderwriter has agreed to indemnify the Company.
(f) Nothing contained in this Agreement shall be construed as requiring any Holder to The Holder(s) may exercise the their Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(g) The Company shall not permit the inclusion of any securities other than the Warrant Securities to be included in any registration statement filed pursuant to Section (9) hereof, or permit any other registration statement to be or remain effective during the effectiveness of a registration statement filed pursuant to Section (9) hereof, other than a secondary offering of equity securities of the Company, without the prior written consent of the Holders of the Warrants and Warrant Securities representing a Majority of such securities.
(h) The Company shall furnish to each Holder participating in the offering and to each underwriter, if any, a signed counterpart, addressed to such Holder or underwriter, of (x) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (y) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(j) The Company shall deliver promptly deliver to each Holder participating in the offering requesting the correspondence and memoranda described below and to the managing underwriters, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to registration statement and permit each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD") or an Exchange. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.
(k) The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Securities and may, at their option, require that any or all the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders and their intended methods of distribution.
(l) For purposes of this Agreement, the term "Majority" in reference to the Holders of Warrants or Warrant Securities, shall mean in excess of fifty (50%) of the then outstanding Warrants and Warrant Securities that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith or (ii) have not been resold to the public pursuant to a registration statement filed with the Commission under the Act.
Appears in 1 contract
Covenants of the Company With Respect to Registration. The In connection with any registration under Section 7.2 or 7.3 hereof, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than a registration statement within thirty (30) business days following of receipt of any demand therefor, shall use its best efforts to have any such Registration Statement registration statements declared effective at the earliest possible time, and shall furnish each holder of Registrable Holder desiring to sell Warrant Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costscosts (excluding fees and expenses of Holder(s)' counsel and any underwriting or selling commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. 7.2 and 7.4.(a7.3(a) (excluding the costs attendant to a second demand registration) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder the Holder(s) of the Registrable Warrant Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify each of the Underwriters as set forth contained in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.
(e) Any holder The Holder(s) of Registrable the Warrant Securities to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such HolderHolders, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement registration statement to the same extent and with the same effect as the provisions contained in Section 7 of the Underwriting Agreement pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting AgreementCompany.
(f) Nothing contained in this Agreement shall be construed as requiring any Holder the Holder(s) to exercise the their Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(g) The Company shall not permit the inclusion of any securities other than the Warrant Securities to be included in any registration statement filed pursuant to Section 7.3 hereof, or permit any other registration statement to be or remain effective during the effectiveness of a registration statement filed pursuant to Section 7.3 hereof (other than (i) shelf registrations effective prior thereto and (ii) registrations on Form S-4 or S-8), without the prior written consent of the Holders of the Warrants and Warrant Securities representing a Majority of such securities.
(h) The Company shall furnish to each Holder participating in the offering and to each underwriter, if any, a signed counterpart, addressed to such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(j) The Company shall deliver promptly deliver to each Holder participating in the offering requesting the correspondence and memoranda described below and to the managing underwriters, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to registration statement and permit each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. NASD. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.
(k) The Company shall enter into an underwriting agreement with the managing underwriters selected for such underwriting by Holders holding a Majority of the Warrant Securities requested pursuant to Section 7.3(a) to be included in such underwriting, which may be Millennium. Such agreement shall be satisfactory in form and substance to the Company, each Holder and such managing underwriter(s), and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter(s). The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Securities whether pursuant to Section 7.2 or Section 7.3(a) and may, at their option, require that any or all of the representations, warranties and covenants of each of the Company and the Subsidiary to or for the benefit of such underwriter(s) shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriter(s) except as they may relate to such Holders and their intended methods of distribution.
(l) For purposes of this Agreement, the term "Majority" in reference to the Holders of Warrants or Warrant Securities, shall mean in excess of fifty percent (50%) of the then outstanding Warrants or Warrant Securities that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith and (ii) have not been resold to the public pursuant to a registration statement filed with the Commission under the Act.
Appears in 1 contract
Samples: Representative's Warrant Agreement (Genesis Media Group Inc /De/)
Covenants of the Company With Respect to Registration. The In connection with any registration under Section (8) or (9) hereof, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than a registration statement within thirty (30) business days following of receipt of any demand therefor, shall use its best efforts to have any such Registration Statement registration statement declared effective at the earliest possible time, and shall furnish each holder of Registrable Holder desiring to sell Warrant Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costscosts (excluding fees and expenses of Holder(s)' counsel and any underwriting or selling commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. (h), (i) and 7.4.(a(j) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section (10)(a), the Company shall, in addition to any other equitable or other relief available to the Holder(s), extend the Exercise Period by such number of days as shall equal the delay caused by the Company's failure.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as are reasonably requested by the holders of such securitiesHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder the Holder(s) of the Registrable Warrant Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), from and against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth Underwriter contained in Section 7 of the Underwriting Agreement and relating to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreementoffering.
(e) Any holder The Holder(s) of Registrable the Warrant Securities to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such HolderHolders, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement registration statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth contained in Section 7 of the Underwriting Agreement and pursuant to provide for just and equitable contribution as set forth in Section 8 of which the Underwriting AgreementUnderwriter has agreed to indemnify the Company.
(f) Nothing contained in this Agreement shall be construed as requiring any Holder to The Holder(s) may exercise the their Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(g) The Company shall not permit the inclusion of any securities other than the Warrant Securities to be included in any registration statement filed pursuant to Section (9) hereof, or permit any other registration statement to be or remain effective during the effectiveness of a registration statement filed pursuant to Section (9) hereof, other than a secondary offering of equity securities of the Company, without the prior written consent of the Holders of the Warrants and Warrant Securities representing a Majority of such securities
(h) The Company shall furnish to each Holder participating in the offering and to each underwriter, if any, a signed counterpart, addressed to such Holder or underwriter, of (x) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (y) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(j) The Company shall deliver promptly deliver to each Holder participating in the offering requesting the correspondence and memoranda described below and to the managing underwriters, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to registration statement and permit each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD") or an Exchange. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.
(k) The Company shall enter into an underwriting agreement with the managing underwriters, which may be the Underwriter. Such agreement shall be satisfactory in form and substance to the Company, and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter; provided however, that no Holder shall be required to make any representations, warranties or covenants or grant any indemnity to which it shall object in any such underwriting agreement. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Securities and may, at their option, require that any or all the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders and their intended methods of distribution.
(l) For purposes of this Agreement, the term "Majority" in reference to the Holders of Warrants or Warrant Securities, shall mean in excess of fifty (50%) of the then outstanding Warrants and Warrant Securities that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith or (ii) have not been resold to the public pursuant to a registration statement filed with the Commission under the Act.
Appears in 1 contract
Covenants of the Company With Respect to Registration. The In connection with any registration under Section 5.2 hereof, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the The Company shall file the Registration Statement as expeditiously as possible, but in any event no later than thirty (30) business days following receipt of any demand therefor, shall use its best efforts within 24 months of the date of issuance of this Warrant to have any such Registration Statement a registration statement declared effective at the earliest possible time, and shall furnish each holder of Registrable Securities such number of prospectuses to the holders as shall reasonably be requested.
(b) The Company shall pay all costs, fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements filed pursuant to registration statements under Sections 7.3. and 7.4.(a) 5.2 hereof including, without limitation, the Company's legal and accounting fees, printing expenses, expenses and blue sky fees and expenses, except that the Company shall not pay for (i) underwriting discounts and commissions, (ii) state transfer taxes, (iii) brokerage commissions and (iv) fees and expenses of counsel and accountants for the holders of the Warrants and/or Warrant Shares.
(c) The Company company will take all necessary action which that may be required in qualifying seeking to register or registering qualify the Registrable Securities Warrant Shares included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as are reasonably requested by the holders of such securitiesthe Warrant Shares, provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company company shall indemnify the holders of Warrant Shares included in any holder of the Registrable Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls any such holder or underwriter or person deemed to be an underwriter Holder within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from out of or based upon any untrue statement or alleged untrue statement of a material fact in such registration statement or any related prospectus, offering circular, notification or other document furnished or authorized by the Company, or any omission or alleged omission of any material fact required to be stated therein or necessary to make the statements therein not misleading, unless such actual or alleged statement or omission was made in reliance upon an in conformity with information furnished in writing to the same extent and Company by or on behalf of any Holder specifically for use in connection with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth in Section 7 preparation of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreementsuch registration statement, prospectus, offering circular, notification or other document.
(e) Any holder Each Holder of Registrable Securities to be sold pursuant to a Registration Statement, and the Warrants and/or Warrant Shares for whose benefit shares are included in any registration statement shall indemnify such Holder's successors and assigns, shall severally, and not jointly, indemnifyother holders, the Company, its officers and directors and each person, if any, who controls any such other Holder or the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from out of or based upon any untrue statement or alleged untrue statement of a material fact in such registration statement or any related prospectus, offering circular, notification or other document furnished or authorized by the Company, or any omission or alleged omission of any material fact required to be stated therein or necessary to make the statements therein not misleading, but only if such actual or alleged statement or omission was made in reliance upon and in conformity with information furnished by or on behalf of such Holder, or such Holder's successors or assigns, Holder for specific inclusion in such Registration Statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreementregistration statement, prospectus, offering circular, notification or other document.
(f) Nothing contained in this Agreement shall be construed as requiring any Holder to exercise the Warrants held by such Holder prior to the initial filing of any Registration Statement or the effectiveness thereof.
(g) The Company shall promptly deliver copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.
Appears in 1 contract
Covenants of the Company With Respect to Registration. The Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the Company shall file the Registration Statement as expeditiously as possible, but in any event no later than thirty (30) business days following receipt of any demand therefor, shall use its best efforts to have any such Registration Statement declared effective at the earliest possible time, and shall furnish each holder Holder of Registrable Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costs, fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances allowance applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders Holders of the Registrable Securities) in connection with all Registration Statements filed pursuant to Sections 7.3. 7.3 and 7.4.(a7.4(a) hereof including, without limitation, the Company's ’s legal and accounting fees, printing expenses, and blue sky fees and expensesexpenses and any fees due to Financial Industry Regulatory Authority (“FINRA”) related to such registration or sale of any of the Registrable Securities.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities included in the Registration Statement for offering and sale under the securities or blue sky laws of such states as are reasonably requested by the holders Holders of such securitiessecurities and for obtaining the clearance of FINRA member firms to participate in the distribution of such Registrable Securities; provided, provided however, that the Company shall not be obligated required in connection therewith to execute qualify to do business or file any a general consent to service of process or in any jurisdiction if the Board of Directors of the Company determines in good faith that the same would be materially detrimental to qualify as a foreign corporation to do business under the laws of any such jurisdictionCompany.
(d) The Company shall indemnify any holder Holder of the Registrable Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act and each person, if any, who controls such holder Holder or underwriter or person deemed to be an underwriter within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("“Exchange Act"”), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters Underwriter as set forth in Section 7 8 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 9 of the Underwriting Agreement.
(e) Any holder Holder of Registrable Securities to be sold pursuant to a Registration Statementregistration statement, and such Holder's ’s successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they any of them may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such Holder, or such Holder's ’s successors or assigns, for specific inclusion in such Registration Statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have Underwriter has agreed to indemnify the Company as set forth in Section 7 8 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 9 of the Underwriting Agreement.
(f) Nothing contained in this Agreement shall be construed as requiring any Holder to exercise the Underwriter Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(g) If the Company shall fail to comply with the provisions of this Article 7, the Company shall, in addition to any other equitable or other relief available to the Holders of Registrable Securities, be liable for any or all incidental, special and consequential damages sustained by the Holders of Registrable Securities requesting registration of their Registrable Securities.
(h) In connection with any offering involving an underwriting of shares of the Company’s Common Stock pursuant to Section 7.3, the Company shall not be required to include any of the Registrable Securities in such underwriting unless the Holders accept the terms of the underwriting as agreed upon between the Company and its underwriters, and then only in such quantity as the underwriters determine in their sole discretion will not jeopardize the success of the offering by the Company. If the total number of securities to be included in such offering, including the Registrable Securities requested by Holders to be included therein, exceeds the amount of securities that the underwriters determine in their reasonable discretion is compatible with the success of the offering, then the Company shall be required to include in the offering only that number of such securities, including Registrable Securities, which the underwriters and the Company determine in their sole discretion will not jeopardize the success of the offering. In the event that the underwriters determine that less than all of the Registrable Securities requested to be registered can be included in such offering, then the Registrable Securities that are included in such offering shall be allocated in the following manner: (i) to the Company and, if there is a balance of Registrable Securities remaining, (ii) to the Holders, provided that if the balance of Registrable Securities remaining is not sufficient to include in the offering all of the Registrable Securities requested to be registered by the Holders, the number of Registrable Securities to be included for any holder shall be determined pro rata based on the proportionate number of Registrable Securities then held (regardless of whether or not such any such Holder has requested that all such Registrable Securities be included), and, if there is a balance of Registrable Securities remaining, (iii) to the other stockholders holding rights as selling security holders, but excluding any stockholder who is an officer or director of the Company. If there is a balance of Registrable Securities remaining after all of the Registrable Securities requested to be registered by the Company, the Holders and the other stockholders holding rights as selling security holders who are not officers and directors of the Company, then Registrable Securities held by officers and directors of the Company may be included in such offering.
(i) The Company shall not permit the inclusion of any securities other than the Registrable Securities to be included in any Registration Statement filed pursuant to Section 7.4 hereof, without the prior written consent of the Majority Holders, which consent shall not be unreasonably withheld.
(j) The Company shall promptly deliver copies of all correspondence between the Commission and the Company, its counsel or its auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 hereof or Section 7.4 hereof that requests requesting such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's ’s Registrable Securities are being registered and shall permit each Holder of Registrable Securities and such Holder and managing underwriter to do such reasonable investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. NASD. Such investigation shall include access to books, records and properties and opportunities necessary or helpful to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder of Registrable Securities or managing underwriter shall reasonably request; provided, that the Company may require each such Holder or underwriter to enter into reasonable confidentiality and non-disclosure agreements with respect to the information contained in or derived from such investigations.
Appears in 1 contract
Samples: Underwriter's Warrant Agreement (ProUroCare Medical Inc.)
Covenants of the Company With Respect to Registration. The In connection with any registration under Section 8.2 hereof, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the Company shall file the Registration Statement as expeditiously as possible, but in any event no later than thirty (30) business days following receipt of any demand therefor, shall use its best efforts to have any such Registration Statement declared effective at the earliest possible time, and shall furnish each holder of Registrable Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costscosts (excluding fees and expenses of Holder(s)’ counsel and any underwriting or selling commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. and 7.4.(a) Section 8.2 hereof including, without limitation, the Company's ’s legal and accounting fees, printing expenses, and blue sky fees and expenses.
(cb) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Warrant Shares included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(dc) The Company shall indemnify any holder the Holder(s) of the Registrable Securities Warrant Shares to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("“Exchange Act"”), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreementstatement.
(e) Any holder of Registrable Securities to be sold pursuant to a Registration Statement, and such Holder's successors and assigns, shall severally, and not jointly, indemnify, the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such Holder, or such Holder's successors or assigns, for specific inclusion in such Registration Statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.
(fd) Nothing contained in this Agreement shall be construed as requiring any Holder the Holder(s) to exercise the Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(ge) The Company shall promptly deliver copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement furnish to each Holder of Registrable Securities included for registration participating in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda the offering and to the managing each underwriter, if any, a signed counterpart, addressed to such Holder or underwriters, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the offering closing under the underwriting agreement), and (ii) a “cold comfort” letter dated the effective date of such registration statement (and, if such registration relates to an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company’s financial statements included in connection such registration statement, in each case covering substantially the same matters with which respect to such Holder's Registrable Securities are being registered registration statement (and shall permit each the prospectus included therein) and, in the case of such Holder and managing underwriter to do such investigation, upon reasonable advance noticeaccountants’ letter, with respect to information contained events subsequent to the date of such financial statements, as are customarily covered in or omitted from opinions of issuer’s counsel and in accountants’ letters delivered to underwriters in underwritten public offerings of securities.
(f) The Company shall as soon as practicable after the Registration Statement as it deems reasonably necessary effective date of any registration statement filed pursuant to comply this Section 8, and in any event within 15 months thereafter, make “generally available to its security holders” (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with applicable securities laws or rules Section 11(a) of the National Association Act and covering a period of Securities Dealers, Inc. Such investigation shall include access to books, records and properties and opportunities to discuss at least 12 consecutive months beginning after the business effective date of the Company registration statement.
(g) For purposes of this Agreement, the term “Majority” in reference to the Warrants or Warrant Shares shall mean in excess of fifty percent (50%) of the then outstanding Warrants or Warrant Shares that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith or (ii) have not been resold to the public pursuant to a registration statement filed with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably requestthe Commission under the Act.
Appears in 1 contract
Samples: Warrant Agreement (Algodon Wines & Luxury Development Group, Inc.)
Covenants of the Company With Respect to Registration. The In connection with any registration under Sections 6.2 or 6.3 hereof, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than thirty a registration statement within forty-five (3045) business days following of receipt of any demand therefor, shall use its best efforts to have any such Registration Statement registration statement declared effective at the earliest possible time, and shall furnish each holder of Registrable Securities Holder desiring to sell Warrant Shares such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costscosts [excluding fees and expenses of Holder(s)' counsel and any underwriting or selling commissions or other charges of any broker-dealer acting on behalf of Holder(s)], fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. Section 6.2 and 7.4.(a6.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. The Holder(s) will pay all costs, fees and expenses in connection with any registration statement filed pursuant to Section 6.3(c). If the Company shall fail to comply with the provisions of Section 6.4(a), the Company shall, in addition to any other equitable or other relief available to the Holder(s), be liable for any or all damages due to loss of profit sustained by the Holder(s) requesting registration of their Warrant Securities.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Warrant Shares included in the Registration Statement registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of or process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder the Holder(s) of the Registrable Securities Warrant Shares to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreementsubject.
(e) Any holder The Holder(s) of Registrable Securities the Warrant Shares to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such HolderHolders, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreementa registration statement.
(f) Nothing contained in this Agreement shall be construed as requiring any Holder the Holder(s) to exercise the their Warrants held by such Holder prior to the initial filing of any Registration Statement or registration statement of the effectiveness thereof.
(g) The Company shall not permit any securities other than the Warrant Shares to be included in any registration statement filed pursuant to Section 6.3 hereof, or permit any other registration statement to be or remain effective during the effectiveness of a registration statement filed pursuant to Section 6.3 hereof, without the prior written consent of the Holders of the Warrant Securities representing a Majority of such securities (assuming an exercise of all of the Warrants).
(h) The Company shall furnish to each Holder participating in an offering including Warrant Shares, pursuant to Sections 6.2 or 6.3 hereof, and to each underwriter, if any, a signed counterpart, addressed to such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable after the effective date of a registration statement relating to any Warrant Shares pursuant to Section 6.2 or 6.3 hereof, and in any event within fifteen (15) months thereafter, make "generally available to its security holders" (within the meaning of Rule 157 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least twelve (12) consecutive months beginning after the effective date of the registration statement.
(j) The Company shall deliver promptly deliver to each Holder participating in an offering including any Warrant Shares pursuant to Sections 6.2 or 6.3 hereof, who so requests, and to the managing underwriter, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to registration statement and permit each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"). Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with and its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or shall reasonably request as it deems necessary to comply with applicable securities laws and NASD rules.
(k) With respect to a registration pursuant to Section 6.3 hereof, the Company shall enter into an underwriting agreement with the managing underwriter selected for such underwriting by Holders holding a Majority of the Warrant Shares requested to be included in such underwriting. Such managing underwriter(s) shall reasonably requestbe satisfactory to the Company and each Holder and such agreement shall be satisfactory in form and substance to the Company, each Holder and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Shares and may, at their option, require that any or all the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the Underwriters except as they may relate to such Holders and their intended methods of distribution.
(l) In addition to the Warrant Shares, upon the written request therefor by any Holder(s), the Company shall include in the registration statement any other securities of the Company held by such Holder(s) as of the date of filing of such registration statement, including without limitation, restricted shares of Common Stock, options, warrants or any other securities convertible into shares of Common Stock.
(m) For purposes of this Agreement, the term "Majority" in reference to the Holders of Warrants or Warrant Shares, shall mean in excess of fifty percent (50%) of the outstanding Warrants or Warrant Shares that (i) are not held by the Company, an affiliate (excluding the Agent and any affiliate of the Agent), officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith or (ii) have not been resold to the public pursuant to a registration statement filed with the Commission under the Act.
Appears in 1 contract
Covenants of the Company With Respect to Registration. The In connection with any registration under Sections 7.3 and 7.4 hereof, the Company covenants and agrees as follows:
(a1) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than thirty a registration statement within sixty (3060) business days following of receipt of any demand therefor, shall use its best efforts to have any such Registration Statement registration statements declared effective at the earliest possible time, and shall furnish each holder of Holder desiring to sell Registrable Securities such number of prospectuses as shall reasonably be requested.
(b2) The Company shall pay all costscosts (excluding fees and expenses of Holder(s)' counsel and any underwriting or selling commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. 7.3 and 7.4.(a) 7.4 hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.5(a), the Company shall, in addition to any other equitable or other relief available to the Holder(s), extend the exercise period of the Underwriter's Warrants by such number of days as shall equal the delay caused by the Company's failure.
(c3) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securities, Holder(s); provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.such
(d4) The Company shall indemnify any holder the Holder(s) of the Registrable Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange ActEXCHANGE ACT"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth Underwriter contained in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.
(e5) Any holder The Holder(s) of the Registrable Securities to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange exchange Act or otherwise, arising from information furnished by or on behalf of such HolderHolders, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement registration statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth contained in Section 7 of the Underwriting Agreement and pursuant to provide for just and equitable contribution as set forth in Section 8 of which the Underwriting AgreementUnderwriter has agreed to indemnify the Company.
(f6) Nothing contained in this Agreement shall be construed as requiring any Holder to exercise For a period of one hundred eighty (180) days after the Warrants held by such Holder prior to the initial filing effectiveness of any Registration Statement or the effectiveness thereof.
(g) The Company shall promptly deliver copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to each Holder of Registrable Securities included for registration in such Registration Statement statement filed pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and hereof, the Company shall not permit any other registration statement (other than (1) a registration statement relating to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.for which
Appears in 1 contract
Samples: Underwriter's Warrant Agreement (United States Financial Group Inc /Ny)
Covenants of the Company With Respect to Registration. The In connection with any registration under Sections 7.2 or 7.3 hereof, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than a registration statement within thirty (30) business days following of receipt of any demand therefor, shall use its best efforts to have any such Registration Statement registration statements declared effective at the earliest possible time, and shall furnish each holder of Registrable Holder desiring to sell Warrant Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costscosts (excluding fees and expenses of Holder(s)' counsel and any underwriting or selling commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. 7.2 and 7.4.(a7.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. The Holder(s) whose Warrant Securities are the subject of such registration statement will pay all costs, fees and expenses in connection with any registration statement filed pursuant to Section 7.3(c).
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.general
(d) The Company shall indemnify any holder the Holder(s) of the Registrable Warrant Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify each of the Underwriters as set forth contained in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.
(e) Any holder The Holder(s) of Registrable the Warrant Securities to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such HolderHolders, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement registration statement to the same extent and with the same effect as the provisions contained in Section 7 of the Underwriting Agreement pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting AgreementCompany.
(f) Nothing contained in this Agreement shall be construed as requiring any Holder the Holder(s) to exercise the their Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(g) The Company shall not permit the inclusion of any securities other than the Warrant Securities to be included in any registration statement filed pursuant to Section 7.3 hereof, or permit any other registration statement to be or remain effective during the effectiveness of a registration statement filed pursuant to Section 7.3 hereof, without the prior written consent of the Holders of the Warrants and Warrant Securities representing a Majority of such securities.
(h) The Company shall furnish to each Holder participating in the offering and to each underwriter, if any, a signed counterpart, addressed to such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available
(j) The Company shall deliver promptly deliver to each Holder participating in the offering requesting the correspondence and memoranda described below and to the managing underwriters, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to registration statement and permit each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. NASD. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.
(k) The Company shall enter into an underwriting agreement with the managing underwriters selected for such underwriting by Holders holding a Majority of the Warrant Securities requested to be included in such underwriting, which may be the Representative. Such agreement shall be satisfactory in form and substance to the Company, each Holder and such managing underwriter(s), and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter(s). The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Securities and may, at their option, require that any or all of the representations, warranties and covenants of the Company to or for the benefit of such underwriter(s) shall also be made to and for the benefit of such Holders.
(l) In addition to the Warrant Securities, upon the written request therefor by any Holder(s), the Company shall include in the registration statement any other securities of the Company held by such Holder(s) as of the date of filing of such registration statement, including without limitation restricted shares of Common Stock, options, warrants or any other securities convertible into shares of Common Stock.
(m) For purposes of this Agreement, the term "Majority" in reference to the Holders of Warrants or Warrant Securities, shall mean in excess of fifty percent (50%) of the then outstanding Warrants or Warrant Securities that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith and (ii) have not been resold to the public pursuant to a registration statement filed with the Commission under the Act.
Appears in 1 contract
Samples: Representative's Warrant Agreement (Conserver Corp of America)
Covenants of the Company With Respect to Registration. The In connection with any registration under Section 7.2 or 7.3 hereof, the Company covenants and agrees the Representative covenant and agree as follows:
(a) In connection with any registration a demand under Section 7.4 hereof7.3, the Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than thirty (30) business a registration statement within 45 days following of receipt of any demand therefor, shall use its best efforts to have any such Registration Statement registration statements declared effective at the earliest possible time, and shall furnish each holder of Registrable Securities Holder desiring to sell Warrant Shares such number of prospectuses as such holder shall reasonably be have requested. If the Company shall fail to comply with its obligations under this Section 7.4(a), the Company shall, in addition to any other equitable or other relief available to the Holder(s), extend the Exercise Period by such number of days as shall equal the delay caused by the Company's failure.
(b) The Company shall pay all costs, fees and expenses costs (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the excluding fees and expenses of Holder(s)' counsel retained and any underwriting or selling commissions or other charges of broker-dealers acting on behalf of the Holders), fees, and expenses incurred by the holders of the Registrable Securities) Company in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. and 7.4.(a) hereof includingSection 7.2 hereof, including without limitation, limitation the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses.
(c) In the event of the filing of a registration statement pursuant to a demand made by Holders pursuant to Section 7.3, the Holders for whom Warrant Shares are pursuant to such demand (including any Holders whose Warrant Shares are included in such registration pursuant to Section 7.2), shall pay all costs, fees and expenses incurred by the Company (including the reasonable and documented fees and expenses of one counsel for the Company) in connection with all registration statements filed pursuant to such demand, provided, however, that (i) in the event that any such registration statement registers shares for the account of the Company or shareholders other than any Holders, the Holders shall pay only that portion of the costs, fees and expenses incurred by the Company in connection with such registration statement equal to the amount equal to (x) the aggregate of such costs, fees and expenses incurred by the Company, multiplied by (y) a fraction, the numerator of which is the number of Warrant Shares included in such registration statement and the denominator of which is the total number of shares included in such registration statement; and (ii) in the event that, at the time the demand is made, the Company is eligible to use Form S-3 (or any successor form under the Securities Act) to register the Warrant Shares for resale by the Holders, the Holders shall not be required to pay fees, costs or expenses of the Company (including the reasonable and documented fees and expenses of one counsel for the Company) in connection with any demand made pursuant to Section 7.3 in the aggregate in excess of $15,000.
(d) The Company will shall take all reasonably necessary action which that may be required in qualifying or registering the Registrable Securities Warrant Shares included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or process, to qualify as a foreign corporation to do business under the laws of any such jurisdiction, or to make any changes in its capital structure or in any other material aspects of its business or to enter into any material agreement with any Blue Sky Commissioners, including any agreements to escrow any shares of its capital stock.
(de) The Company shall indemnify any holder the Holder(s) of the Registrable Securities Warrant Shares to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing preparing, or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions contained in Section 9 of the Underwriting Agreement pursuant to which the Company has agreed to indemnify the Underwriters as set forth in Section 7 each of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting AgreementUnderwriters.
(ef) Any holder The Holder(s) of Registrable Securities the Warrant Shares to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, Company and its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense damage, expense, or liability (including all expenses reasonably incurred in investigating, preparing preparing, or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act Act, or otherwise, arising from information furnished in writing by or on behalf of such HolderHolders, or such Holder's their successors or assigns, specifically for specific inclusion in such Registration Statement registration statement, to the same extent and with the same effect as the provisions contained in Section 9 of the Underwriting Agreement pursuant to which each of the Underwriters have has severally agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting AgreementCompany.
(fg) Nothing contained in this Agreement shall be construed as requiring any Holder the Holder(s) to exercise the their Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(gh) The Company shall not permit the inclusion of any securities other than the Warrant Shares to be included in any registration statement filed pursuant to Section 7.3(a) hereof without the prior written consent of the Holders of the Warrants and the Warrant Shares representing a Majority of such securities, provided, however, that any other holders of shares of Common Stock who have the right, as of the date hereof, to have their shares of Common Stock included in certain registrations of the Common Stock undertaken by the Company, shall have the right to have their shares included in such registration to the extent of such rights. In the event that any registration undertaken by the Company pursuant to section 7.3(a) shall be, in whole or in part, an underwritten public offering, (i) as a condition to permitting the inclusion of any such shares of Common Stock other than any Warrant Shares in such registration, each holder thereof must agree to participate in the underwriting arrangements contemplated in connection with such underwritten public offering, and (ii) the number of shares to be included in such registration (other than any Warrant Shares) may be reduced if and to the extent that the managing underwriter shall be of the opinion that such inclusion would adversely affect the marketing of the securities to be sold by the Company therein. In the event of the filing of a registration statement pursuant to Section 7.3 hereof, the Company shall not permit any other registration statement to be or remain effective during the period commencing on the effective date of the registration statement filed pursuant to Section 7.3 and ending on the date 120 days after such effective date, other than with respect to shares issuable in connection with a merger or acquisition and registered on Form S-4 (or a similar special-purpose form) or with an employee benefit plan and registered on Form S-8 (or a similar special-purpose form), without the prior written consent of the Holders of the Warrants and the Warrant Shares representing a Majority of such securities.
(i) The Company shall cause to be furnished to each Holder participating in the offering and to each underwriter, if any, a signed counterpart, addressed to such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (or if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter dated the effective date of such registration statement (and if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(j) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(k) The Company shall deliver promptly deliver to each Holder participating in the offering requesting the correspondence and memoranda described below and to the managing underwriters, copies of all correspondence between the Commission and the Company, its counsel counsel, or auditors and all memoranda generated or received by the Company and relating to discussions with the Commission or its staff with respect to the Registration Statement to registration statement and permit each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter underwriters to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"). Such investigation shall include access to books, records records, and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.
(l) In connection with an underwritten offering pursuant to Section 7.3, the Company shall enter into an underwriting agreement with the managing underwriters selected for such underwriting by Holders holding a Majority of the Warrant Shares requested to be included in such underwriting, which may be the Representative. If not the Representative, the selection of such managing underwriter shall be subject to the approval of the Company, which shall not be unreasonably withheld or delayed. Such agreement shall be reasonably satisfactory in form and substance to the Company, each Holder, and such managing underwriters, and shall contain such representations, warranties, and covenants by the Company and the participating Holders and such other terms and conditions as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Shares and may, at their option, require that any or all the representations, warranties, and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders and their intended methods of distribution.
(m) For purposes of this Agreement, the term "Majority" in reference to the Holders of Warrants and/or Warrant Shares, shall mean in excess of fifty percent (50%) of the then outstanding Warrants and/or Warrant Shares that (i) are not held by the Company, an affiliate, officer, creditor, employee, or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith and (ii) have not been resold to the public pursuant to a registration statement filed with the Commission under the Act.
Appears in 1 contract
Samples: Representative's Warrant Agreement (Brunswick Technologies Inc)
Covenants of the Company With Respect to Registration. The In connection with any registration under Section 7.2 or 7.3 hereof, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than a registration statement within thirty (30) business days following of receipt of any demand therefor, shall use its best efforts to have any such Registration Statement registration statements declared effective at the earliest possible time, and shall furnish each holder of Registrable Holder desiring to sell Warrant Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costscosts (excluding fees and expenses of Holder(s)' counsel and any underwriting or selling commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. 7.2 and 7.4.(a7.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder the Holder(s) of the Registrable Warrant Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.any
(e) Any holder The Holder(s) of Registrable the Warrant Securities to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such HolderHolders, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement registration statement to the same extent and with the same effect as the provisions contained in Section 8 of the Underwriting Agreement pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting AgreementCompany.
(f) Nothing contained in this Agreement shall be construed as requiring any Holder the Holder(s) to exercise the their Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(g) The Company shall not permit the inclusion of any securities other than the Warrant Securities to be included in any registration statement filed pursuant to Section 7.3 hereof, or permit any other registration statement to be or remain effective during the effectiveness of a registration statement filed pursuant to Section 7.3 hereof (other than (i) shelf registrations effective prior thereto and (ii) registrations on Form S-4 or S-8), without the prior
(h) The Company shall furnish to each Holder participating in the offering and to each underwriter, if any, a signed counterpart, addressed to such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement) relating to the due incorporation of the Company, the validity of the shares being issued, the due execution and delivery of the underwriting agreement and Rule 10b-5, and (ii) if such registration includes an underwritten public offering, a "cold comfort" letter dated the effective date of such registration statement and a letter dated the date of the closing under the underwriting agreement signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, with respect to events subsequent to the date of such financial statements, as are customarily covered in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(j) The Company shall deliver promptly deliver to each Holder participating in the offering requesting the correspondence and memoranda described below and to the managing underwriters, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions its
(k) The Company shall enter into an underwriting agreement with the Commission or its staff with respect to managing underwriters selected for such underwriting by Holders holding a Majority of the Registration Statement to each Holder of Registrable Warrant Securities included for registration in such Registration Statement requested pursuant to Section 7.3 7.3(a) to be included in such underwriting, which may be the Representatives. Such agreement shall be reasonably satisfactory in form and substance to the Company, each Holder and such managing underwriter(s), and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter(s). The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Securities whether pursuant to Section 7.2 or Section 7.4 hereof 7.3(a) and may, at their option, require that requests such correspondence and memoranda and to the managing underwriter, if any, any or all of the offering in connection with which such Holder's Registrable Securities are being registered representations, warranties and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. Such investigation shall include access to books, records and properties and opportunities to discuss the business covenants of the Company to or for the benefit of such underwriter(s) shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with its officers and independent auditors, all the Company or the underwriter(s) except as they may relate to such reasonable extent Holders and at such reasonable times and as often as any such Holder their intended methods of distribution.
(l) For purposes of this Agreement, the term "Majority" in reference to the Holders of Warrants or managing underwriter Warrant Securities, shall reasonably request.mean in excess of fifty percent (50%) of the
Appears in 1 contract
Samples: Representatives' Warrant Agreement (Callnow Com Inc)
Covenants of the Company With Respect to Registration. The In connection with any registration under Section 7.1 or 7.2 hereof, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than thirty a registration statement within forty-five (3045) business days following of receipt of any demand therefortherefor in accordance with Section 7.1, shall use its best efforts to have any such Registration Statement registration statement declared effective at the earliest possible practicable time, and shall furnish to the Underwriter and each holder Holder desiring to sell the Underwriter's Shares, Underwriter's Warrants, the Common Shares underlying the Underwriter's Warrants or any other securities held by the Underwriter or the other Holders as a result of any adjustment made pursuant to the provisions of Sections 8.1 or 8.2 hereof (collectively, the "Registrable Securities Securities"), such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costscosts (excluding fees and expenses of the Underwriter's and the other Holders' counsel and any underwriting or selling commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. 7.1 and 7.4.(a) 7.2 hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.4, the Company shall, in addition to any other equitable or other relief available to the Underwriter and the other Holders, be liable for any or all actual damages (which may include damages due to a loss of profit).
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesUnderwriter and the other Holders, provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder the Underwriter and all other Holders of the Registrable Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder Underwriter or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "Exchange 1934 Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange 1934 Act or otherwise, arising from such registration statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth Underwriter in Section 7 5 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 6 of the Underwriting Agreement.
(e) Any holder The Underwriter and all other Holders of the Registrable Securities to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange 1934 Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange 1934 Act or otherwise, arising from information furnished by or on behalf of such HolderHolders, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement registration statement to the same extent and with the same effect as the provisions contained in Section 5 of the Underwriting Agreement pursuant to which the Underwriters have Underwriter has agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 6 of the Underwriting Agreement.
(f) Nothing contained in this Agreement shall be construed as requiring any Holder the Underwriter or other Holders to exercise their Underwriter's Unit Warrants or the Underwriter's Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(g) The Company shall deliver promptly deliver to the Underwriter and all other Holders of the Registrable Securities participating in the offering copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to each Holder registration statement and permit the Underwriter and the other Holders of the Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"); provided that the Underwriter and each such holder of the Registrable Securities agrees not to disclose such information without the prior consent of the Company. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as the Underwriter and any such other Holder or managing underwriter of the Registrable Securities shall reasonably request.
(h) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, the Underwriter and each other Holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, the Underwriter and the other Holders of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and may, at their option, require that any or all the representations and warranties of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of the Underwriter and the other Holders of the Registrable Securities. The Underwriter and the other Holders of the Registrable Securities shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to the Underwriter and the other Holders of the Registrable Securities and their intended methods of distribution.
(i) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to the Underwriter and each Holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to the Underwriter, such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement), signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(j) The Company shall promptly notify the Underwriter and each Holder of the Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Act, upon the Company's discovery that, or upon the happening of any event as a result of which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice the Underwriter and each Holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of the Underwriter or any such Holder, the Company shall promptly prepare and furnish to the Underwriter or such Holder and each underwriter, if any, a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made.
(k) For purposes of this Agreement, the term "majority" in reference to the Underwriter and the other Holders of the Underwriter's Unit Warrants, Underwriter's Units, Underwriter's Shares, Underwriter's Warrants or the Common Shares underlying the Underwriter's Warrants, shall mean in excess of fifty percent (50%) of the then outstanding Underwriter's Warrants and Underwriter's Shares that have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Act.
Appears in 1 contract
Samples: Underwriter's Unit Warrant Agreement (Flight Safety Technologies Inc)
Covenants of the Company With Respect to Registration. The In connection with any registration under Section 7.1 or 7.2 hereof, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement a registration statement, as expeditiously soon as possiblepracticable, but in any event no later than thirty within sixty (3060) business days following of receipt of any demand therefor, shall use its best efforts to have any
(i) the Company shall not be obligated to use its best efforts to file and cause to become effective any registration statement for a period of up to 90 days if at the time of such Registration Statement request any other registration statement pursuant to which shares of Common Stock of the Company are to be or were sold has been filed with the Commission and not withdrawn or has been declared effective within the prior 60 days; and
(ii) the Company may delay the filing or effectiveness of the registration statement for a period of up to 90 days after the date of a request for registration if at the earliest possible time, and shall furnish each holder time of Registrable such request the Company is engaged in a firm commitment underwritten public offering of Common Stock in which the Holders may include their Warrant Securities such number of prospectuses as shall reasonably be requestedpursuant to Section 7.1 hereof.
(b) The Company shall pay all costs, fees and expenses in connection with all registration statements filed pursuant to Sections 7.1 and 7.2(a) hereof (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the excluding fees and expenses of the Representative's and Holders' counsel retained by the holders of the Registrable Securitiesand accountants and any underwriting or selling commissions) in connection with all Registration Statements filed pursuant to Sections 7.3. and 7.4.(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. The Holder(s) whose Warrant Securities are the subject of a Registration Statement filed pursuant to Section 7.2(c) will pay all reasonable costs, fees and expenses in connection therewith, including, without limitation, registration fees, legal and accounting fees, printing fees, blue sky fees and expenses that have been approved in advance by a majority of the Holders participating in such registration. If the Company shall fail to comply with the provisions of Section 7.3(a) hereof, the Company shall, in addition to any other equitable or other relief available to such Holders, extend the Exercise Period by such number of days as shall equal the delay caused by the Company's failure and be liable for any or all incidental, special and consequential damages sustained by such Holders.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolder(s), provided that provided, that, the Company shall not be obligated to execute qualify generally to do business in any jurisdiction where it is not then so qualified or file to take any action which would subject it to general consent to service of process or to qualify as a foreign corporation to do business under the laws of taxation in any such jurisdictionjurisdiction where it is not then so subject.
(d) The Company shall indemnify any holder furnish without charge to each Holder of Warrant Securities, promptly after filing thereof with the Commission, at least one copy of the Registrable Securities to be sold registration statement filed pursuant to any Section 7.1 or 7.2 (a "Registration Statement and any underwriter or person deemed to be an underwriter under the Act Statement") and each person, if any, who controls such holder amendment thereto or underwriter each amendment or person deemed supplement to be an underwriter within the meaning of Section 15 of prospectus included therein (the Act or Section 20(a"Prospectus") of the Securities Exchange Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred financial statements and schedules, documents incorporated by reference therein and if the Holder so requests in investigatingwriting, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreementall exhibits thereto.
(e) Any holder of Registrable The Company shall take such action as may be reasonably necessary so that (i) the Registration Statement and any amendment thereto and any Prospectus forming a part thereof and any supplement or amendment thereto complies in all material respects with the Securities Act and the rules and regulations thereunder, (ii) the Registration Statement and any amendment thereto (in either case, other than with respect to be sold pursuant written information furnished to a Registration Statement, and such Holder's successors and assigns, shall severally, and not jointly, indemnify, the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of any Holder specifically for inclusion therein) does not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make any statement therein not misleading and (iii) the Prospectus and any supplement thereto (in either case, other than with respect to such Holderinformation from Holders), does not include an untrue statement of a material fact or such Holder's successors or assignsomit to state a material fact necessary in order to make the statements therein, for specific inclusion in such Registration Statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 light of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreementcircumstances under which they were made, not misleading.
(f) The Company shall promptly advise the Holders of Warrant Securities registered under the Registration Statement (which advice pursuant to clauses (ii) - (iv) shall be accompanied by an instruction to
(i) when the Registration Statement and any amendment thereto has been filed with the Commission and when the Registration Statement or any post-effective amendment thereto has become effective;
(ii) of any request by the Commission for amendments to the Registration Statement or amendments or supplements to the Prospectus or for additional information relating thereto;
(iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension by any state securities commission of the qualification of the Warrant Securities for offering or sale in any jurisdiction, or the initiation of any proceeding for any of the preceding purposes; and
(iv) of the happening of any event that requires the making of any changes in the Prospectus so that, as of such date, the Prospectus does not contain an untrue statement of a material fact and does not omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(g) If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, or any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption from qualification of the Warrant Securities under state securities or Blue Sky laws, the Company shall use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time.
(h) The Company shall, during the period the Company is obligated to maintain the effectiveness of a Registration Statement under Section 7.2 hereof, deliver to each Holder of Warrant Securities included under the Registration Statement, without charge, such reasonable number of copies of the Prospectus (including each preliminary prospectus) included in the Registration Statement and any amendment or supplement thereto as such Holder may reasonably request to facilitate the public sale or other disposition of the Warrant Securities by the selling Holder.
(i) The Company shall cooperate with the Holders and the underwriter(s), if any, to facilitate the timely preparation and delivery of certificates representing Warrant Securities to be sold under the Registration Statement, free of any restrictive legends and in such denominations and registered in such names as the Holders or the underwriter(s), if any, may reasonably request in connection with the sales of Warrant Securities pursuant to the Registration Statement.
(j) Upon the occurrence of any event contemplated by Section 7.3(f)(ii) - (iv) hereof or any request by the Commission for any amendments to the Registration Statement or for additional information relating thereto or the happening of any event that requires the making of any changes in the Registration Statement, the Company shall file (and use its reasonable best efforts to have declared effective as soon as possible) a post-effective amendment to the Registration Statement or an amendment or supplement to the Prospectus or file any other required document so that, as thereafter delivered to the purchasers of Warrant Securities registered under the Registration Statement, the Prospectus will not contain 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. Each Holder of Warrant Securities registered under the Registration Statement agrees by acquisition of such Warrant Securities that, upon receipt of any notice from the Company of the existence of any fact of the kind described in Section 7.3(f)(ii) - (iv) hereof, such Holder will forthwith discontinue disposition of Warrant Securities pursuant to the Registration Statement until such Holder receives copies of the supplemented or amended Prospectus contemplated by this Section 7.3(j), or until such Holder is advised in writing by the Company that the use of the Prospectus may be resumed, and such Holder has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus. If so directed by the Company, each Holder will
(k) Nothing contained in this Agreement shall be construed as requiring any Holder the Holders to exercise the their Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(gl) The Company shall not permit the inclusion of any securities other than Warrant Securities to be included in any Registration Statement filed pursuant to Section 7.2(a) or 7.2(c) hereof without the prior written consent of the Holders representing a majority of the Holders then requesting registration under such Section 7.2(a) or Section 7.2(c), respectively.
(m) The Company shall furnish to each Holder participating in the offering and to each underwriter, if any, a signed counterpart, addressed to such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such Registration Statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) if and to the extent permitted by Statement of Auditing Standards No. 72, a "cold comfort" letter dated the effective date of such Registration Statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in such Registration Statement, in each case covering substantially the same matters with respect to such Registration Statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(n) The Company shall as soon as practicable after the effective date of the Registration Statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Securities Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Securities Act and covering a period of at least 12 consecutive months beginning after the effective date of the Registration Statement.
(o) The Company shall deliver promptly deliver to each Holder participating in the offering upon request, and to the managing underwriters, if any, copies of all correspondence between the Commission and the Company, its counsel or auditors accountants and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter such underwriters to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. NASD. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditorsaccountants, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.
(p) With respect to the registration of Warrant Securities pursuant to Section 7.2 to be sold to an underwriter for reoffering to the public, the Company shall negotiate in good faith with respect to entering into an underwriting agreement with the managing underwriters selected for such underwriting by Holders holding a majority of the Warrant Securities requested to be included in such underwriting, which may include the Representative. Such agreement shall be satisfactory in form and substance to the Company, each Holder and such managing underwriter and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Securities and may, at their option, require that any or all the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company except as they may relate to such Holders and their intended methods of distribution and shall not be requested by the Company to provide indemnification except as provided in Section 7.3(s) hereof.
(r) For purposes of this Agreement, wherever a specified percent of Holders is required to take action, such percentage shall be calculated: (i) assuming the immediate exercise of all of the outstanding Warrants for Common Stock and (ii) excluding the shares of Common Stock then issued or issuable pursuant to Warrants that (x) are held by the Company, an affiliate or officer thereof or any of their respective affiliates, members of their family or persons acting as their nominees or in conjunction therewith or (y) have been resold to the public pursuant to a Registration Statement filed with the Commission under the Securities Act.
Appears in 1 contract
Covenants of the Company With Respect to Registration. The In connection with any registration under Section 7.1 or 7.2 or 7.3 hereof, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than thirty a registration statement within ninety (3090) business days following of receipt of any demand therefor, shall use its best efforts to have any such Registration Statement registration statements declared effective at the earliest possible time, and shall furnish each holder of Registrable Holder desiring to sell Warrant Securities such number of prospectuses as shall reasonably be requested; provided, however, that the Company shall not be required to conduct an audit or prepare audited financial statements outside its normal cycle and compliance with the request shall be delayed until such time as the Company is otherwise required by law to complete its audit and prepare such financial statements.
(b) The Company shall pay all costscosts (excluding fees and expenses of Holder(s)' counsel and any underwriting or selling commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. 7.1(b), 7.2 and 7.4.(a7.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, expenses and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.4(a), the Company shall, in addition to any other equitable or other relief available to the Holder(s), be liable for any or all incidental or special damages sustained by the Holder(s) requesting registration of their Warrant Securities.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by a majority in interest of the holders of such securitiesHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder the Holder(s) of the Registrable Warrant Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holder within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth Underwriter contained in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 7(a) of the Underwriting Agreement, except that the representation set forth in the last clause of Section (1)(s) thereunder shall not be required.
(e) Any holder The Holder(s) of Registrable the Warrant Securities to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such Holder, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement registration statement to the same extent and with the same effect as the provisions contained in Section 7(b) of the Underwriting Agreement pursuant to which the Underwriters have Underwriter has agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting AgreementCompany.
(f) Nothing contained in this Agreement shall be construed as requiring any Holder the Holder(s) to exercise the their Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(g) The Company shall furnish to each Holder participating in the offering and to each underwriter, if any, a signed counterpart, addressed to such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(h) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
(i) The Company shall deliver promptly deliver to each Holder participating in the offering requesting the correspondence and memoranda described below and to the managing underwriters, copies of all correspondence between the Commission and the Company and between the Commission and the Company, its 's counsel or auditors and all reasonable memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to registration statement and permit each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter underwriters to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. NASD. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.
(j) Unless the Company chooses to effect a required registration hereunder on Form S-3, in the event of a demand for registration under paragraph 7.3(a), the Company shall enter into an underwriting agreement with the managing underwriter selected for such underwriting by Holders holding a Majority of the Warrant Securities requested to be included in such underwriting, which may be the Underwriter. Such agreement shall be satisfactory in form and substance to the Company, each Holder and such managing underwriter, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holder shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Securities and may, at their option, require that any or all the representations, warranties and covenants of the Company to or for the benefit of such underwriter shall also be made to and for the benefit of such Holder. Such Holder shall not be required to make any representations or warranties to or agreements with the Company or the underwriter except as they may relate to such Holder and their intended methods of distribution.
(k) For purposes of this Agreement, the term "Majority" in reference to the Holders of Warrants or Warrant Securities, shall mean a percentage in excess of fifty percent (50%) of the then outstanding Warrant Securities (treating all such securities as fully exercised for Shares for purposes of such calculation) that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith and (ii) have not been resold to the public pursuant to a registration statement filed with the Commission under the Act.
Appears in 1 contract
Samples: Underwriter's Warrant Agreement (Omnicorder Technologies Inc)
Covenants of the Company With Respect to Registration. The In connection with any registration under Section 7.2 or 7.3 hereof, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than thirty a registration statement within sixty (3060) business days following of receipt of any demand therefor, shall use its best efforts to have any such Registration Statement registration statements declared effective at the earliest possible time, and shall furnish each holder of Registrable the Holder desiring to sell Warrant Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costscosts (excluding any underwriting or selling commissions or other charges of any broker-dealer acting on behalf of Holders), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. 7.2 and 7.4.(a7.3(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.4(a), the Company shall, in addition to any other equitable or other relief available to the Holder(s), be liable for any or all damages due to loss of profit sustained by the Holder(s) requesting registration of its Warrant Securities.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as are reasonably the state requested by the holders of such securities, provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdictionHolder.
(d) The Company shall indemnify any holder the Holder(s) of the Registrable Warrant Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holder within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth in Section 7 except for misrepresentation of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreementinformation supplied by Holder.
(e) Any holder of Registrable Securities to be sold pursuant to a Registration Statement, and such Holder's successors and assigns, shall severally, and not jointly, indemnify, the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such Holder, or such Holder's successors or assigns, for specific inclusion in such Registration Statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.
(f) Nothing contained in this Agreement shall be construed as requiring any Holder the Holder(s) to exercise the their Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(f) The Company shall furnish to each Holder participating in the offering and to each underwriter, if any, a signed counterpart, addressed to such Holder or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering; a letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to agents subsequent to the date of such financial statements, are as customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offering of securities.
(g) The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Act) an earnings statement (which need not be audited) complying with Section 11(a) of the Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration agreement.
(h) The Company shall deliver promptly deliver to each Holder participating in the offering requesting the correspondence and memoranda described below and the managing underwriter copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence statement and memoranda and to permit the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. ("NASD"). Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably requestrequest as it deems necessary to comply with applicable securities laws or NASD rules.
(i) In addition to the Warrant Securities, upon the written request therefor by any Holder(s), the Company shall include in the registration statement any other securities of the Company held by such Holder(s) as of the date of filing of such registration statement, including without limitation, restricted shares of Common Stock, options, warrants or any other securities convertible into shares of Common Stock.
(j) For purposes of this Agreement, the term "Majority" in reference to the Holders of Warrants or Warrant Securities, shall mean in excess of fifty percent (50%) of the then outstanding Warrants or Warrant Securities that (i) are not held by the Company, an affiliate, officer, creditor, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith or (ii) have not been resold to the public pursuant to a registration statement filed with the Commission under the Act.
Appears in 1 contract
Samples: Warrant Agreement (Hollo Mark)
Covenants of the Company With Respect to Registration. The In ----------------------------------------------------- connection with any registration under Section 7.2 or 7.3 hereof, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than thirty (30) business a registration statement within ninety-five days following of receipt of any demand therefor, shall use its best efforts to have any such Registration Statement registration statements declared effective at the earliest possible time, and shall furnish each holder of Registrable Holder desiring to sell Warrant Securities such number of prospectuses as shall reasonably be requested. Best efforts shall include the reasonable efforts to insure the availability of financial statements and other matters necessary to effectuate the filing.
(b) The Company shall pay all costscosts (excluding fees and expenses of Holder(S) counsel and any underwriting or selling commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. 7.2 and 7.4.(a7.3(a) hereof including, without limitation, the Company's 'S legal and accounting fees, printing expenses, and blue sky fees and expenses. If the Company shall fail to comply with the provisions of Section 7.4(a), the Company shall, in addition to any other equitable or other relief available to the Holder(S), be liable for any and all incidental, special and consequential damages and damages due to loss of profit sustained by the Holder(S) requesting registration of their Warrant Securities. Notwithstanding anything herein to the contrary, provided the Company complies with the provisions of Section 7.3(c), the Company shall have no liability under the foregoing sentence of this Section 7.4(b).
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolder(S), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder the Holder(S) of the Registrable Warrant Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreementstatement.
(e) Any holder The Holder(S) of Registrable the Warrant Securities to be sold pursuant to a Registration Statementregistration statement, and such Holder's their successors and assigns, shall severally, and not jointly, indemnify, indemnify the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such HolderHolders, or such Holder's their successors or assigns, for specific inclusion in such Registration Statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreementregistration statement.
(f) Nothing contained in this Agreement shall be construed as requiring any Holder the Holder(S) to exercise the their Warrants held by such Holder prior to the initial filing of any Registration Statement registration statement or the effectiveness thereof.
(g) The Company shall use its best efforts not to permit the inclusion of any securities other than the Warrants and Warrant Securities to be included in any registration statement filed pursuant to Section 7.3 hereof or permit any other registration statement to be or remain effective during the effectiveness of a registration statement filed pursuant to Section 7.3 hereof (except registration statements on Form S-8 or filed pursuant to contractual commitments existing on the date hereof), without the prior written consent of the Holders of the Warrants and Warrant Securities representing a majority of such securities. In the event the Company is required to include securities other than the Warrants and Warrant Securities in a registration statement filed under Section 7.3, the Holders shall be entitled to one additional right to demand the preparation and filing of a registration under Section 7.3.
(h) The Company shall furnish to each broker-dealer participating as an underwriter, if any, a signed counterpart, addressed to such broker-dealer or underwriter, of (i) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company'S financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer'S counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
(i) The Company, as soon as practicable, but in any event not later than forty-five days after the end of the twelve-month period beginning on the day after the end of the fiscal quarter of the Company during which the effective date of the Registration Statement occurs (ninety days in the event that the end of such fiscal quarter is the end of the Company'S fiscal year), shall make generally available to its security holders, in the manner specified in Rule 158(b) of the Rules and Regulations of the Commission, an earnings statement which will be in the detail required by, and will otherwise comply with, the provisions of Section 11(a) of the Act and Rule 158(a) of the Rules and Regulations of the Commission, which statement need not be audited unless required by the Act, covering a period of at least twelve consecutive months after the effective date of the Registration Statement.
(j) The Company shall deliver promptly deliver to each Holder participating in the offering and to the managing underwriters, if any, copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to registration statement and permit each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. NASD. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.
(k) The Company shall enter into an underwriting agreement with the managing underwriters selected for such underwriting by Holders holding a Majority of the Warrant Securities requested to be included in such underwriting. Such agreement shall be satisfactory in form and substance to the Company, each Holder and such managing underwriters, and shall contain such representations, warranties and covenants by the Company and such other terms as are customarily contained in agreements of that type used by the managing underwriter. The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Warrant Securities and may, at their option, require that any or all the representations, warranties and covenants of the Company to or for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters except as they may relate to such Holders and their intended methods of distribution.
(1) For purposes of this Agreement, the term "Majority" in reference to the Holders of Warrants or Warrant Securities, shall mean Holders who hold in excess of fifty percent of the then outstanding Warrants or Warrant Securities that (i) are not held by the Company, an affiliate (other than a Holder), officer, employee or agent thereof or any of their respective affiliates, members of their family, persons acting as nominees or in conjunction therewith and (ii) have not been resold to the public pursuant to a registration statement filed with the Commission under the Act.
Appears in 1 contract
Samples: Warrant Agreement (Medcross Inc)
Covenants of the Company With Respect to Registration. The Company hereby covenants and agrees as follows:
(a) In connection with Following the effective date of any registration statement filed under Section 7.4 hereof1 or 2, the Company shall file shall, upon the Registration Statement as expeditiously as possiblerequest of the Holder, but in any event no later than thirty (30) business days following receipt of any demand therefor, shall use its best efforts to have any forthwith supply such Registration Statement declared effective at the earliest possible time, and shall furnish each holder of Registrable Securities such reasonable number of prospectuses copies of the registration statement and prospectus meeting the requirements of the Act as shall be reasonably be requestedrequested by the Holder to permit the Holder to make a public distribution of the Shares. The obligations of the Company hereunder with respect to the Shares are expressly conditioned on the Holder's furnishing to the Company such appropriate information concerning the Holder, the Shares and the terms of the Holder's offering of such shares as the Company may request.
(b) The Company shall will pay all costs, fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements any registration statement filed pursuant to Sections 7.3. 1 and 7.4.(a) hereof 2 hereof, including, without limitation, the Company's legal and accounting fees, printing expenses, expenses and blue sky fees and expenses; provided, however, that the Holder shall be solely responsible for the fees of any counsel retained by the Holder in connection with such registration and any transfer taxes or underwriting discounts, selling commissions or selling fees applicable to the Shares sold by the Holder pursuant thereto.
(c) The Company will take all necessary action which may be required in qualifying use its reasonable best efforts to qualify or registering register the Registrable Securities Shares included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as are reasonably requested by the holders of such securitiesHolder, provided that the Company shall not be obligated to execute or file any general consent to service of process (unless the Company is already then subject to service in such jurisdiction) or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(d) The Company shall indemnify any holder of the Registrable Securities to , except as may be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under required by the Act and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement to the same extent its rules and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreementregulations.
(e) Any holder of Registrable Securities to be sold pursuant to a Registration Statement, and such Holder's successors and assigns, shall severally, and not jointly, indemnify, the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such Holder, or such Holder's successors or assigns, for specific inclusion in such Registration Statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.
(f) Nothing contained in this Agreement shall be construed as requiring any Holder to exercise the Warrants held by such Holder prior to the initial filing of any Registration Statement or the effectiveness thereof.
(g) The Company shall promptly deliver copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.
Appears in 1 contract
Samples: Registration Rights Agreement (Take Two Interactive Software Inc)
Covenants of the Company With Respect to Registration. The In connection with any registration under Section 7.1 or 7.2 hereof, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the The Company shall use its best efforts to file the Registration Statement as expeditiously as possible, but in any event no later than a registration statement within thirty (30) business days following of receipt of any demand therefor, shall use its best efforts to have any such Registration Statement registration statements declared effective at the earliest possible time, and shall furnish each holder of Registrable Holder desiring to sell Warrant Securities such number of prospectuses as shall reasonably be requested.
(b) The Company shall pay all costscosts (excluding fees and expenses of Holder(s)' counsel and any underwriting or selling commissions), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. 7.1 and 7.4.(a7.2(a) hereof including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses. The Holder(s) will pay all costs, fees and expenses in connection with any registration statement filed pursuant to Section 7.2(c). If the Company shall fail to comply with the provisions of Section 7.3(a), the Company shall, in addition to any other equitable or other relief available to the Holder(s), be liable for any or all incidental or special damages sustained by the Holder(s) requesting registration of their Warrant Securities.
(c) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesHolder(s), provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction.
(de) The Company shall indemnify any holder the Holder(s) of the Registrable Warrant Securities to be sold pursuant to any Registration Statement and any underwriter or person deemed to be an underwriter under the Act registration statement and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Holder within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the Exchange Act or otherwise, arising from such registration statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify the Underwriters as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreementstatement.
(e) Any holder of Registrable Securities to be sold pursuant to a Registration Statement, and such Holder's successors and assigns, shall severally, and not jointly, indemnify, the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim, damage or expense or liability (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they may become subject under the Act, the Exchange Act or otherwise, arising from information furnished by or on behalf of such Holder, or such Holder's successors or assigns, for specific inclusion in such Registration Statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.
(f) Nothing contained in this Agreement shall be construed as requiring any Holder to exercise the Warrants held by such Holder prior to the initial filing of any Registration Statement or the effectiveness thereof.
(g) The Company shall promptly deliver copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Holder and managing underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Registration Statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter shall reasonably request.
Appears in 1 contract
Covenants of the Company With Respect to Registration. The In connection with any registration of Registrable Securities under Section 2 hereof, the Company covenants and agrees as follows:
(a) In connection with any registration under Section 7.4 hereof, the Company shall file the Registration Statement as expeditiously as possible, but in any event no later than thirty (30) business days following receipt of any demand therefor, shall use its best efforts to have any such Registration Statement declared effective at the earliest possible time, and shall furnish each holder of Registrable Securities such number of prospectuses as shall reasonably be requested.
(b) 2.4.1 The Company shall pay all costscosts (including the costs of a single firm of counsel designated by the Selling Holders to review the registration statement and all amendments and supplements thereto up to a maximum of $25,000 in respect of each registration under Section 2 hereof, but excluding any underwriting or selling commissions or other charges of any Underwriter or broker-dealer acting on behalf of the Selling Holders), fees and expenses (other than underwriting fees, discounts and nonaccountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel retained by the holders of the Registrable Securities) in connection with all Registration Statements registration statements filed pursuant to Sections 7.3. and 7.4.(a) hereof Section 2 hereof, including, without limitation, the Company's legal and accounting fees, printing expenses, and blue sky fees and expenses.
(c) . The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities included in the Registration Statement a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by the holders of such securitiesSelling Holders; provided, provided that the Company shall not be obligated to execute or file any general consent to service of process or to qualify as a foreign corporation to do business under the laws of any such jurisdiction. If the Selling Holders have sent a Demand Notice and have determined not to sell any Registrable Securities pursuant to a registered offering, the Selling Holders may elect to reimburse the Company for any costs incurred solely with respect to such registration statement or lose the demand registration rights.
(d) 2.4.2 The Company shall indemnify any holder of the Registrable Securities to be sold pursuant to any Registration Statement each Selling Holder, its trustees and any underwriter or person deemed to be an underwriter under the Act officers, and each person, if any, who controls such holder or underwriter or person deemed to be an underwriter Selling Holder within the meaning of Section 15 of the Securities Act or Section 20(a) of the Securities Exchange Act of 1934, as amended ("Exchange Act"), against from and against, and pay or reimburse them for, all losslosses, claimclaims, damagedamages, expense or liability expenses and liabilities (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Securities Act, the Exchange Act or otherwise, arising from out of or based upon any untrue statement or alleged untrue statement of a material fact contained in any such registration statement, including any preliminary prospectus or final prospectus contained therein or any supplement to or amendments thereof, or arising out of or based upon any omission or alleged omission of a material fact required to be stated therein or necessary to make a statement therein not misleading, except insofar as such losses, claims, damages, expenses or liabilities arise out of or are based upon any such untrue statement or omission or allegation thereof based upon information furnished in writing to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to by or on behalf of a Selling Holder expressly for use therein. Each Selling Holder shall indemnify the Underwriters as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreement.
(e) Any holder of Registrable Securities to be sold pursuant to a Registration Statement, and such Holder's successors and assigns, shall severally, and not jointly, indemnify, the Company, its officers and directors and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange Act, against from and against, and pay or reimburse them for, all losslosses, claimclaims, damage or expense or liability damages, expenses and liabilities (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which they any of them may become subject under the Securities Act, the Exchange Act or otherwise, directly arising from written information furnished by or on behalf of such Holder, or such Holder's successors or assigns, Selling Holder for specific inclusion in such Registration Statement to the same extent and with the same effect as the provisions pursuant to which the Underwriters have agreed to indemnify the Company as set forth in Section 7 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Underwriting Agreementregistration statement.
(f) Nothing contained in this Agreement shall be construed as requiring any Holder to exercise the Warrants held by such Holder prior to the initial filing of any Registration Statement or the effectiveness thereof.
(g) 2.4.3 The Company shall not permit any other registration statement to be filed during the first 60 days of effectiveness of a registration statement filed pursuant to Section 2 hereof (other than a registration statement in connection with a merger or consolidation or pursuant to Form S-8, S-4 or comparable registration statement or a registration filed xxxxxxxx to any rights granted to the Johnston Family Foundation pursuant to the terms of that certain Suboxxxxxxxx Promissory Note dated October 26, 2001 issued by the Company), without the prior written consent of the Stockholder Representative, which consent shall not be unreasonably withheld, and shall be provided only after a Stockholder Action. The Company shall not permit the inclusion of any securities other than the Registrable Securities held by any Rights Holder to be included in any registration statement filed pursuant to Sections 2.1 and 2.3 hereof; provided, however, that the Company may include securities being offered by it for its own account and for the account of stockholders of the Company permitted by the Company to include their securities in such registration statement, to the extent that such inclusion does not in any way reduce the number of securities proposed to be included by Selling Holder.
2.4.4 The Company shall use reasonable efforts in good faith to cause to be furnished to each Selling Holder and to each Underwriter, if any, a signed counterpart, addressed to each Selling Holder or such Underwriter, of (a) an opinion of counsel to the Company, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (b) a "cold comfort" letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, a letter dated the date of the closing under the underwriting agreement) signed by the independent public accountants who have issued a report on the Company's financial statements included in such registration statement, in each case covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten public offerings of securities.
2.4.5 The Company shall as soon as practicable after the effective date of the registration statement, and in any event within 15 months thereafter, make "generally available to its security holders" (within the meaning of Rule 158 under the Securities Act) an earnings statement (which may be unaudited) complying with Section 11(a) of the Securities Act and covering a period of at least 12 consecutive months beginning after the effective date of the registration statement.
2.4.6 The Company shall deliver promptly deliver to each Selling Holder and to the managing Underwriter, if any, copies of all correspondence between the Commission SEC and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration Statement to each Holder of Registrable Securities included for registration in such Registration Statement pursuant to Section 7.3 or Section 7.4 hereof that requests such correspondence and memoranda and to the managing underwriter, if any, of the offering in connection with which such Holder's Registrable Securities are being registered and shall permit each such Selling Holder and managing underwriter Underwriter at its own cost and expense to do such investigation, upon reasonable advance notice, and upon entering into a confidentiality agreement, in form and substance reasonably acceptable to the Company, with each Selling Holder and such Underwriter, with respect to information contained in or omitted from the Registration Statement registration statement as it deems reasonably necessary to comply with applicable securities laws or rules of the National Association of Securities Dealers, Inc. (the "NASD") or other national exchange. Such investigation shall include access to books, records and properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as any such Holder or managing underwriter the Lender shall reasonably requestrequest as it deems necessary to comply with applicable securities laws or rules of the NASD or other national exchange.
2.4.7 Nothing contained in this Agreement shall be construed as requiring any Stockholder to exercise its Option prior to the effectiveness of any registration statement.
Appears in 1 contract
Samples: Registration Rights Agreement (Royal Precision Inc)
