Covenants of the Company With Respect to Registration. In connection with any registration under Section 7(a) hereof, the Company covenants and agrees as follows: (i) The Company shall use its best efforts to file a registration statement within ninety (90) days of receipt of any demand therefore in accordance with Section 7(a), shall use its best efforts to have any registration statement declared effective at the earliest practicable time, and shall furnish you and each holder desiring to sell the Registrable Securities held by you or the other holder(s) as a result of any adjustment made pursuant to the provisions of Section 5 hereof, such number of prospectuses as shall reasonably be requested. (ii) The Company shall pay all costs (excluding fees and expenses of counsel for you and any other holder(s) and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Section 7(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(d), the Company shall, in addition to any other equitable or other relief available to you and any other holder(s), be liable for any or all actual damages (which may include damages due to a loss of profit). (iii) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as are reasonably requested by you and any other 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. (iv) The Company shall indemnify you and any other holder(s) of the Registrable Securities to be sold pursuant to any registration statement and each person, if any, who controls you or any other holder(s) within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the “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 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 you in the Placement Agreement to be entered into by and between you and the Company (the “Placement Agreement”) and to provide for just and equitable contribution as set forth in the Placement Agreement. (v) You and any other holder(s) of the Registrable Securities to be sold pursuant to a registration statement, and their 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 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 1934 Act or otherwise, arising from information furnished by or on behalf of such holder(s), or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in the Placement Agreement pursuant to which you have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in the Placement Agreement. (vi) Nothing contained in this Agreement shall be construed as requiring you or any other holder(s) to exercise any portion of their Warrant prior to the initial filing of any registration statement or the effectiveness thereof. (vii) The Company shall deliver promptly to you and any other holder(s) 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 and permit you and the other holder(s) of the Registrable Securities 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 Financial Industry Regulatory Authority (“FINRA”); provided that you and each such holder of the Registrable Securities agree 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 you and any other holder(s) of the Registrable Securities shall reasonably request. (viii) 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, you 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, you and the other holder(s) 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 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 you and the other holder(s) of the Registrable Securities. You and the other holder(s) 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 you and the other holder(s) of the Registrable Securities and their intended methods of distribution. (ix) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to you and each holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to you, such holder(s) or underwriter, of (i) an opinion of counsel to the Company, dated as of 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. (x) The Company shall promptly notify you 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 you and each holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of you or any such holder(s), the Company shall promptly prepare and furnish to you or such holder(s) 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. (xi) For purposes of this Agreement, the term “majority” in reference to you and the other holder(s) of a Warrant or the shares underlying an unexercised Warrant, shall mean in excess of fifty percent (50%) of the shares underlying the then outstanding Warrant(s) 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 8 contracts
Samples: Warrant Agreement (Tibet Pharmaceuticals, Inc.), Warrant Agreement (Tai Shan Communications, Inc.), Warrant Agreement (Qingdao Footwear, Inc.)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7(a) hereofthe previous paragraph, the Company covenants and agrees as follows:
(i) The the Company shall use its best efforts to file a registration statement within ninety (90) days of receipt of any demand therefore in accordance with Section 7(a), as soon as practicable and shall use its best efforts to have any registration statement declared effective at the earliest practicable possible time, and shall furnish you and each holder Holder desiring to sell the Registrable Securities held by you or the other holder(s) as a result of any adjustment made pursuant to the provisions of Section 5 hereof, Warrant Shares such number of prospectuses as shall reasonably be requested.
; (ii) The the Company shall pay all costs (excluding fees and expenses of Holder's counsel for you and any other holder(s) and any underwriting or selling commissionscommissions or other charges of any broker-dealer acting on behalf of such Holder), fees and expenses in connection with all registration statements filed pursuant to Section 7(a) hereof the previous paragraph including, without limitation, the Company’s 's legal and accounting fees, printing expenses, and blue sky fees and expenses. If ; (iii) 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 you and any other holder(s), be liable for any or all actual damages (which may include damages due to a loss of profit).
(iii) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Warrant Shares included in a the registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by you and any other holder(s)the Holder, 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.
; (iv) The the Company shall indemnify you and any other holder(s) the Holder of the Registrable Securities Warrant Shares to be sold pursuant to any registration statement and each person, if any, who controls you or any other holder(s) such Holder within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the “1934 "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 1934 Act or otherwise, arising from such which relate to any registration statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify you statement(s) prepared in the Placement Agreement to be entered into by and between you and the Company (the “Placement Agreement”) and to provide for just and equitable contribution as set forth in the Placement Agreement.
connection herewith; (v) You and any other holder(s) the Holder of the Registrable Securities Warrant Shares to be sold pursuant to a registration statement, and their successors and assigns, shall severally, severally and not jointly, 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 1934 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 1934 Exchange Act or otherwise, arising from any information furnished by or on behalf of such holder(s)Holder, or their successors or assigns, for specific inclusion in such a registration statement to the same extent and with the same effect as the provisions contained in the Placement Agreement pursuant to which you have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in the Placement Agreement.
statement; (vi) Nothing nothing contained in this Agreement Warrant shall be construed as requiring you or any other holder(s) the Holder to exercise any portion of their this Warrant prior to the initial filing of any registration statement or the effectiveness thereof.
; (vii) The the Company shall prepare and file with the Securities and Exchange Commission (the "Commission") such amendments, post-effective amendments and supplements to the registration statement and the prospectus included therein as may be necessary to keep the registration statement effective until the later of (i) the date when all Warrant Shares registered have been sold or (ii) until such time as the Warrant Shares are free of restriction on resale under the Act (by removal of all restrictive legends, instructions to transfer or otherwise) pursuant to Rule 144; and comply with the provisions of the Act with respect to the disposition of all securities covered by such registration statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof as set forth in such registration statement or supplement of the prospectus; (viii) the Company shall furnish to the Holder participating in an offering including Warrant Shares and to each underwriter, if any, a signed counterpart, addressed to the Holder or 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; (vii) the Company shall, as soon as practicable after the effective date of a registration statement relating to any Warrant Shares pursuant to the previous paragraph, and in any event within fifteen (15) months thereafter, use its reasonable efforts to 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; and (viii) upon the written request of the Holder, the Company shall deliver promptly to you and any other holder(s) of the Registrable Securities Holder participating in an offering including any Warrant Shares pursuant to the offering previous paragraph 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 and shall permit you the Holder and the other holder(s) of the Registrable Securities 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 Financial Industry Regulatory Authority National Association of Securities Dealers, Inc. (“FINRA”"NASD"); provided that you and each such holder of the Registrable Securities agree 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 you and any other holder(s) of the Registrable Securities such Holder shall reasonably request.
(viii) 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, you and each other holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms request as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, you and the other holder(s) 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 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 you and the other holder(s) of the Registrable Securities. You and the other holder(s) 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 you and the other holder(s) of the Registrable Securities and their intended methods of distribution.
(ix) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to you and each holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to you, such holder(s) or underwriter, of (i) an opinion of counsel to the Company, dated as of 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.
(x) The Company shall promptly notify you 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 it deems necessary to make the statements therein not misleading in the light of the circumstances under which they were made, comply with applicable securities laws and upon receipt of such notice you and each holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of you or any such holder(s), the Company shall promptly prepare and furnish to you or such holder(s) 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 madeNASD rules.
(xi) For purposes of this Agreement, the term “majority” in reference to you and the other holder(s) of a Warrant or the shares underlying an unexercised Warrant, shall mean in excess of fifty percent (50%) of the shares underlying the then outstanding Warrant(s) 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 7 contracts
Samples: Warrant Agreement (Vyteris Holdings (Nevada), Inc.), Warrant Agreement (Vyteris Holdings (Nevada), Inc.), Warrant Agreement (Vyteris Holdings (Nevada), Inc.)
Covenants of the Company With Respect to Registration. In ----------------------------------------------------- connection with any registration under Section 7(a) 8.1 hereof, the Company covenants and agrees as follows:
(ia) The Company shall use its best efforts to file a registration statement within ninety (90) days of receipt of any demand therefore in accordance with Section 7(a), shall use its best efforts to have any registration statement statements declared effective at the earliest practicable time, time and shall furnish you and each holder Holder desiring to sell the Registrable Securities held by you or the other holder(s) as a result of any adjustment made pursuant to the provisions of Section 5 hereof, such number of prospectuses as shall reasonably be requested.
(iib) The Company shall pay all costs costs, expenses and fees (excluding fees and expenses of Holder(s)' counsel for you and any other holder(s) and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Section 7(a) 8.1 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(d8.2(a), the Company shall, in addition to any other equitable or other relief available to you and any other holder(sthe Holder(s), be liable for any or all actual damages (which may include damages due to a loss extend the exercise period of profit)the Warrants by such number of days as shall equal the delay caused by the Company's failure.
(iiic) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by you and any other holder(sthe Holder(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.
(ivd) The Company shall indemnify you and any other holder(sthe Holder(s) of the Registrable Securities to be sold pursuant to any registration statement and each person, if any, who controls you or any other holder(s) such Holders within the meaning of Section 15 16 of the Act or Section 20(a21(a) of the Securities Exchange Act of 1934, as amended (the “1934 "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 1934 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 you in the Placement Agreement to be entered into by and between you and the Company (the “Placement Agreement”is indemnified under subsection 8.2(e) and to provide for just and equitable contribution as set forth in the Placement Agreementhereof.
(ve) You and any other holder(sThe Holder(s) of the Registrable Securities to be sold pursuant to a registration statement, and their 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 16 of the Act or Section 20(a21(a) of the 1934 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 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such holder(s)Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in the Placement Agreement pursuant to which you have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in the Placement Agreementstatement.
(vif) Nothing contained in this Agreement shall be construed as requiring you or any other holder(sFor a period of ninety (90) to exercise any portion of their Warrant prior to days after the initial filing effectiveness of any registration statement filed pursuant to Section 8.1 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 made available to the Holder(s) of the Registrable Securities piggyback registration rights hereunder and (2) a registration statement filed on Forms S-4 or S-8 or a shelf registration on Form S-3) to be or remain effective during the effectiveness thereofof a registration statement or a shelf registration on Form S-3 filed pursuant to Section 8.1 hereof, without the prior written consent of the Holders of the Registrable Securities representing a majority of such securities.
(viig) 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 any registration statement filed pursuant to Section 8.1 hereof, and in any event within fifteen (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 twelve (12) consecutive months beginning after the effective date of the registration statement.
(i) The Company shall deliver promptly to you and any other holder(s) of the Registrable Securities 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 and permit you each Holder and the other holder(s) of the Registrable Securities 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 Financial Industry Regulatory Authority (“FINRA”); provided that you and each such holder of the Registrable Securities agree not to disclose such information without the prior consent of the CompanyNASD. 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 you and any other holder(s) of the Registrable Securities such Holder or underwriter shall reasonably request.
(viiij) If required by the underwriters Nothing contained 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 Agreement shall be satisfactory in form and substance construed as requiring the Holder(s) to exercise their Warrants prior to the Company, you and each other holder initial filing 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, you and the other holder(s) 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 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 you and the other holder(s) of the Registrable Securities. You and the other holder(s) 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 you and the other holder(s) of the Registrable Securities and their intended methods of distribution.
(ix) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to you and each holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to you, such holder(s) or underwriter, of (i) an opinion of counsel to the Company, dated as of 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.
(x) The Company shall promptly notify you 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 you and each holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of you or any such holder(s), the Company shall promptly prepare and furnish to you or such holder(s) 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.
(xi) For purposes of this Agreement, the term “majority” in reference to you and the other holder(s) of a Warrant or the shares underlying an unexercised Warrant, shall mean in excess of fifty percent (50%) of the shares underlying the then outstanding Warrant(s) 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 Acteffectiveness thereof.
Appears in 7 contracts
Samples: Warrant Agreement (Aviation Group Inc), Warrant Agreement (Aviation Group Inc), Warrant Agreement (Aviation Group Inc)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7(a) hereofthe previous paragraph, the Company covenants and agrees as follows:
(i) The the Company shall use its best efforts to file a registration statement within ninety (90) days of receipt of any demand therefore in accordance with Section 7(a), as soon as practicable and shall use its best efforts to have any registration statement declared effective at the earliest practicable possible time, and shall furnish you and each holder Holder desiring to sell the Registrable Securities held by you or the other holder(s) as a result of any adjustment made pursuant to the provisions of Section 5 hereof, Warrant Shares such number of prospectuses as shall reasonably be requested.
; (ii) The the Company shall pay all costs (excluding fees and expenses of Holder's counsel for you and any other holder(s) and any underwriting or selling commissionscommissions or other charges of any broker-dealer acting on behalf of such Holder), fees and expenses in connection with all registration statements filed pursuant to Section 7(a) hereof the previous paragraph including, without limitation, the Company’s 's legal and accounting fees, printing expenses, and blue sky fees and expenses. If ; (iii) 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 you and any other holder(s), be liable for any or all actual damages (which may include damages due to a loss of profit).
(iii) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Warrant Shares included in a the registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by you and any other holder(s)the Holder, 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.
; (iv) The the Company shall indemnify you and any other holder(s) the Holder of the Registrable Securities Warrant Shares to be sold pursuant to any registration statement and each person, if any, who controls you or any other holder(s) such Holder within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the “1934 "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 1934 Act or otherwise, arising from such which relate to any registration statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify you statement(s) prepared in the Placement Agreement to be entered into by and between you and the Company (the “Placement Agreement”) and to provide for just and equitable contribution as set forth in the Placement Agreement.
connection herewith; (v) You and any other holder(s) the Holder of the Registrable Securities Warrant Shares to be sold pursuant to a registration statement, and their successors and assigns, shall severally, severally and not jointly, 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(aor
(a) of the 1934 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 1934 Exchange Act or otherwise, arising from any information furnished by or on behalf of such holder(s)Holder, or their successors or assigns, for specific inclusion in such a registration statement to the same extent and with the same effect as the provisions contained in the Placement Agreement pursuant to which you have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in the Placement Agreement.
statement; (vi) Nothing nothing contained in this Agreement Warrant shall be construed as requiring you or any other holder(s) the Holder to exercise any portion of their this Warrant prior to the initial filing of any registration statement or the effectiveness thereof.
; (vii) The the Company shall prepare and file with the Securities and Exchange Commission (the "Commission") such amendments, post-effective amendments and supplements to the registration statement and the prospectus included therein as may be necessary to keep the registration statement effective until the later of (i) the date when all Warrant Shares registered have been sold or (ii) until such time as the Warrant Shares are free of restriction on resale under the Act (by removal of all restrictive legends, instructions to transfer or otherwise) pursuant to Rule 144; and comply with the provisions of the Act with respect to the disposition of all securities covered by such registration statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof as set forth in such registration statement or supplement of the prospectus; (viii) the Company shall furnish to the Holder participating in an offering including Warrant Shares and to each underwriter, if any, a signed counterpart, addressed to the Holder or 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; (vii) the Company shall, as soon as practicable after the effective date of a registration statement relating to any Warrant Shares pursuant to the previous paragraph, and in any event within fifteen (15) months thereafter, use its reasonable efforts to 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; and (viii) upon the written request of the Holder, the Company shall deliver promptly to you and any other holder(s) of the Registrable Securities Holder participating in an offering including any Warrant Shares pursuant to the offering previous paragraph 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 and shall permit you the Holder and the other holder(s) of the Registrable Securities 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 Financial Industry Regulatory Authority National Association of Securities Dealers, Inc. (“FINRA”"NASD"); provided that you and each such holder of the Registrable Securities agree 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 you and any other holder(s) of the Registrable Securities such Holder shall reasonably request.
(viii) 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, you and each other holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms request as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, you and the other holder(s) 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 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 you and the other holder(s) of the Registrable Securities. You and the other holder(s) 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 you and the other holder(s) of the Registrable Securities and their intended methods of distribution.
(ix) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to you and each holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to you, such holder(s) or underwriter, of (i) an opinion of counsel to the Company, dated as of 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.
(x) The Company shall promptly notify you 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 it deems necessary to make the statements therein not misleading in the light of the circumstances under which they were made, comply with applicable securities laws and upon receipt of such notice you and each holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of you or any such holder(s), the Company shall promptly prepare and furnish to you or such holder(s) 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 madeNASD rules.
(xi) For purposes of this Agreement, the term “majority” in reference to you and the other holder(s) of a Warrant or the shares underlying an unexercised Warrant, shall mean in excess of fifty percent (50%) of the shares underlying the then outstanding Warrant(s) 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 6 contracts
Samples: Warrant Agreement (Vyteris Holdings (Nevada), Inc.), Warrant Agreement (Vyteris Holdings (Nevada), Inc.), Warrant Agreement (Vyteris Holdings (Nevada), Inc.)
Covenants of the Company With Respect to Registration. In connection with any registration registrations under Section 7(aSections 7(b) and 7(c) hereof, the Company covenants and agrees as follows:
(i1) The Company shall use its best efforts to file a registration statement within ninety forty-five (9045) calendar days of receipt of any demand therefore therefor 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 accordance with Section 7(a)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 registration statement declared effective at the earliest practicable possible time, and shall furnish you and each holder Holder desiring to sell the Registrable Securities held by you or the other holder(s) as a result of any adjustment made pursuant to the provisions of Section 5 hereof, such number of prospectuses as shall reasonably be requested.
(ii2) The Company shall pay all costs (excluding fees and expenses of Holders' counsel for you and any other holder(s) and any underwriting discounts or selling fees, expenses or commissions), fees and expenses in connection with all any registration statements statement filed pursuant to Section 7(aSections 7(b) and 7(c) 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(d), the Company shall, in addition to any other equitable or other relief available to you and any other holder(s)the Holders, be liable for any or all actual incidental and special damages (which may include and damages due to a loss of profit)profit sustained by the Holders requesting registration of their Registrable Securities.
(iii3) The Company will take all necessary action which may be required in qualifying to qualify or registering register the Registrable Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by you and any other holder(s)the 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.
(iv4) The Company shall indemnify you and any other holder(s) the Holders of the Registrable Securities to be sold pursuant to any registration statement and each person, if any, who controls you or any other holder(s) such 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 “1934 "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 1934 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 you the Underwriter contained in Section 8 of the Placement Agreement to be entered into by and between you Underwriting Agreement, and the Holders shall indemnify the Company (to the “Placement Agreement”) same extent and with the same effect as the provisions pursuant to provide for just and equitable contribution as set forth which the Underwriter have agreed to indemnify the Company contained in Section 8 of the Placement Underwriting Agreement.
(v5) You and any other holder(s) The Holders of the Registrable Securities to be sold pursuant to a registration statement, and their 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 1934 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 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such holder(s)Holders, or their 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 8 of the Placement Underwriting Agreement pursuant to which you the Underwriter have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in the Placement AgreementCompany.
(vi6) Nothing contained in this Agreement shall be construed as requiring you or any other holder(s) the Holders to exercise any portion of their Warrant Underwriter's Warrants (or the Warrants purchasable upon exercise thereof) prior to the initial filing of any registration statement or the effectiveness thereof.
(vii7) 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 Underwriter 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 Underwriter 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 to you and any other holder(s) of the Registrable Securities 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 and permit you each Holder and the other holder(s) of the Registrable Securities 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 Financial Industry Regulatory Authority National Association of Securities Dealers, Inc. (“FINRA”"NASD"); provided that you and each such holder of the Registrable Securities agree 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 auditorsUnderwriters of the Accountants, all to such reasonable extent and at such reasonable times and as often as you and any other holder(s) of the Registrable Securities such Holder shall reasonably request.
(viii11) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the The Company shall enter into an underwriting agreement with one or more underwriters 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, you a Majority of such Holders and each other holder of the Registrable Securitiessuch 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 underwritersmanaging Underwriter. If required by the underwriters, you and the other holder(s) of the Registrable Securities 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 representations the representations, warranties and warranties covenants of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, Underwriter shall also be made to and for the benefit of you and the other holder(s) of the Registrable Securitiessuch Holders. You and the other holder(s) of the Registrable Securities Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters Underwriter except as they may relate to you and the other holder(s) of the Registrable Securities such Holders and their intended methods of distribution.
(ix) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to you and each holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to you, such holder(s) or underwriter, of (i) an opinion of counsel to the Company, dated as of 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.
(x) The Company shall promptly notify you 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 you and each holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of you or any such holder(s), the Company shall promptly prepare and furnish to you or such holder(s) 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.
(xi) For purposes of this Agreement, the term “majority” in reference to you and the other holder(s) of a Warrant or the shares underlying an unexercised Warrant, shall mean in excess of fifty percent (50%) of the shares underlying the then outstanding Warrant(s) 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 5 contracts
Samples: Underwriter's Warrant Agreement (Protosource Corp), Underwriter's Warrant Agreement (Protosource Corp), Underwriter's Warrant Agreement (Protosource Corp)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7(a) 10.1 or 10.2 hereof, the Company covenants and agrees as follows:
(ia) The Company shall use its best reasonable efforts to file a registration statement demanded under Section 10.2(a) hereof within ninety fifty (9050) days of receipt of any demand therefore in accordance with Section 7(a)therefor, shall use its best reasonable efforts to have any registration statement statements declared effective at the earliest practicable possible time, and shall furnish you and each holder of the Holders of the Warrant Agreements desiring to sell all or any portion of the Registrable Securities held by you or the other holder(s) as a result of any adjustment made pursuant to the provisions of Section 5 hereof, Total Warrant Shares under such registration statement such number of prospectuses as shall reasonably be requested.
(iib) The Company shall pay all costs (excluding fees and expenses of Holder(s)' counsel for you and any other holder(s) and any underwriting or selling commissionscommissions which shall be paid by the Holders of the Warrant Agreements), fees and expenses in connection with all registration statements filed pursuant to Section 7(a10.1 and 10.2(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(d), the Company shall, in addition to any other equitable or other relief available to you and any other holder(s), be liable for any or all actual damages (which may include damages due to a loss of profit).
(iiic) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Warrant Shares included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by you and any other holder(sthe 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.
(iv) The Company shall indemnify you and any other holder(s) of the Registrable Securities to be sold pursuant to any registration statement and each person, if any, who controls you or any other holder(s) within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the “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 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 you in the Placement Agreement to be entered into by and between you and the Company (the “Placement Agreement”) and to provide for just and equitable contribution as set forth in the Placement Agreement.
(v) You and any other holder(s) of the Registrable Securities to be sold pursuant to a registration statement, and their 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 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 1934 Act or otherwise, arising from information furnished by or on behalf of such holder(s), or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in the Placement Agreement pursuant to which you have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in the Placement Agreement.
(vid) Nothing contained in this Agreement shall be construed as requiring you or any other holder(s) the Holders of the Warrant Agreements to exercise any portion of their Warrant Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(viie) The Company shall deliver promptly to you and any other holder(s) each of the Registrable Securities Holders of the Warrant Agreements 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 and permit you and the other holder(s) of the Registrable Securities 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 Financial Industry Regulatory Authority (“FINRA”); provided that you and each such holder of the Registrable Securities agree 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 you and any other holder(s) of the Registrable Securities shall reasonably requeststatement.
(viii) 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, you 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, you and the other holder(s) 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 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 you and the other holder(s) of the Registrable Securities. You and the other holder(s) 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 you and the other holder(s) of the Registrable Securities and their intended methods of distribution.
(ix) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to you and each holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to you, such holder(s) or underwriter, of (i) an opinion of counsel to the Company, dated as of 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.
(x) The Company shall promptly notify you 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 you and each holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of you or any such holder(s), the Company shall promptly prepare and furnish to you or such holder(s) 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.
(xi) For purposes of this Agreement, the term “majority” in reference to you and the other holder(s) of a Warrant or the shares underlying an unexercised Warrant, shall mean in excess of fifty percent (50%) of the shares underlying the then outstanding Warrant(s) 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 4 contracts
Samples: Warrant Agreement (Perma Fix Environmental Services Inc), Warrant Agreement (Perma Fix Environmental Services Inc), Warrant Agreement (Perma Fix Environmental Services Inc)
Covenants of the Company With Respect to Registration. In --------------------------------------------------------- connection with any registration under Section 7(a) hereof7.2, the Company covenants and agrees as follows:
(ia) The Company shall use its best efforts to file a registration statement within ninety (90) days of receipt of any demand therefore in accordance with Section 7(a), shall use its best efforts to have any registration statement declared effective at the earliest practicable possible time, and shall furnish you and each holder Holder desiring to sell the Registrable Securities held by you or the other holder(s) as a result of any adjustment made pursuant to the provisions of Section 5 hereof, such number of prospectuses as shall reasonably be requested.
(iib) The Company shall pay all costs (excluding fees and expenses of Holder(s)' counsel for you and any other holder(s) and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Section 7(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(d), the Company shall, in addition to any other equitable or other relief available to you and any other holder(s), be liable for any or all actual damages (which may include damages due to a loss of profit).
(iiic) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by you and any other holder(sthe 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.
(ivd) The Company shall indemnify you and any other holder(sthe Holder(s) of the Registrable Securities to be sold pursuant to any registration statement and each person, if any, who controls you or any other holder(s) such Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the “1934 "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 1934 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 you in the Placement Agreement to be entered into by and between you and the Company (the “Placement Agreement”) and to provide for just and equitable contribution as set forth in the Placement Agreementstatement.
(ve) You and any other holder(sThe Holder(s) of the Registrable Securities to be sold pursuant to a registration statement, and their 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 1934 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 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such holder(s)Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in the Placement Agreement pursuant to which you have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in the Placement Agreementstatement.
(vi) Nothing contained in this Agreement shall be construed as requiring you or any other holder(s) to exercise any portion of their Warrant prior to the initial filing of any registration statement or the effectiveness thereof.
(vii) The Company shall deliver promptly to you and any other holder(s) 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 and permit you and the other holder(s) of the Registrable Securities 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 Financial Industry Regulatory Authority (“FINRA”); provided that you and each such holder of the Registrable Securities agree 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 you and any other holder(s) of the Registrable Securities shall reasonably request.
(viii) 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, you 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, you and the other holder(s) 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 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 you and the other holder(s) of the Registrable Securities. You and the other holder(s) 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 you and the other holder(s) of the Registrable Securities and their intended methods of distribution.
(ix) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to you and each holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to you, such holder(s) or underwriter, of (i) an opinion of counsel to the Company, dated as of 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.
(x) The Company shall promptly notify you 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 you and each holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of you or any such holder(s), the Company shall promptly prepare and furnish to you or such holder(s) 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.
(xif) For purposes of this Agreement, the term “majority” "Majority" in reference to you and the other holder(s) Holders of a Warrant or the shares underlying an unexercised WarrantRegistrable Securities, shall mean in excess of fifty percent (50%) of the shares underlying the then outstanding Warrant(s) Registerable Securities that have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission SEC under the Act.
Appears in 4 contracts
Samples: Warrant Agreement (New York Health Care Inc), Warrant Agreement (New York Health Care Inc), Warrant Agreement (New York Health Care Inc)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7(a) 7.2 hereof, the Company covenants and agrees as follows:
(i) The Company shall use its best efforts to file a registration statement within ninety (90) days of receipt of any demand therefore in accordance with Section 7(a), shall use its best efforts to have any registration statement declared effective at the earliest practicable time, and shall furnish you and each holder desiring to sell the Registrable Securities held by you or the other holder(s) as a result of any adjustment made pursuant to the provisions of Section 5 hereof, such number of prospectuses as shall reasonably be requested.
(iia) The Company shall pay all costs (excluding fees and expenses of Holder(s)’ counsel for you and any other holder(s) and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Section 7(a) hereof 7.2 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 you and any other holder(s), be liable for any or all actual damages (which may include damages due to a loss of profit).
(iiib) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by you and any other holder(sthe 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.
(ivc) The Company shall indemnify you and any other holder(sthe Holder(s) of the Registrable Warrant Securities to be sold pursuant to any registration statement and each person, if any, who controls you or any other holder(s) such Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the “1934 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 1934 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 you each of the Underwriters contained in Section 6 of the Placement Underwriting Agreement to be entered into by and between you and the Company (the “Placement Agreement”) and to provide for just and equitable contribution as set forth in Section 6 of the Placement Underwriting Agreement.
(vd) You and any other holder(sThe Holder(s) of the Registrable Warrant Securities to be sold pursuant to a registration statement, and their 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 1934 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 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such holder(s)Holders, or their 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 6 of the Placement Underwriting Agreement pursuant to which you the Underwriters have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in the Placement Underwriting Agreement.
(vie) Nothing contained in this Agreement shall be construed as requiring you or any other holder(sthe Holder(s) to exercise any portion of their Warrant Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(viif) The Company shall deliver promptly to you and any other holder(s) of the Registrable Securities 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 and permit you each Holder and the other holder(s) of the Registrable Securities 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 Financial Industry Regulatory Authority (“FINRA”); provided that you and each such holder of the Registrable Securities agree 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 you and any other holder(s) of the Registrable Securities shall reasonably requestNASD.
(viii) 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, you 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, you and the other holder(s) 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 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 you and the other holder(s) of the Registrable Securities. You and the other holder(s) 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 you and the other holder(s) of the Registrable Securities and their intended methods of distribution.
(ix) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to you and each holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to you, such holder(s) or underwriter, of (i) an opinion of counsel to the Company, dated as of 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.
(x) The Company shall promptly notify you 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 you and each holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of you or any such holder(s), the Company shall promptly prepare and furnish to you or such holder(s) 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.
(xi) For purposes of this Agreement, the term “majority” in reference to you and the other holder(s) of a Warrant or the shares underlying an unexercised Warrant, shall mean in excess of fifty percent (50%) of the shares underlying the then outstanding Warrant(s) 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 3 contracts
Samples: Representative’s Warrant Agreement (Marchex Inc), Representative's Warrant Agreement (Marchex Inc), Representative’s Warrant Agreement (Marchex Inc)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7(a) 9.2 or 9.3 hereof, the Company covenants and agrees as follows:
(ia) The Company shall use its best efforts to file a registration statement within ninety (90) days of receipt of any demand therefore in accordance with Section 7(a)therefor, shall use its best efforts and to have any registration statement statements declared effective at the earliest practicable possible time, and shall furnish you and each holder Holder desiring to sell the Registrable Securities held by you or the other holder(s) as a result of any adjustment made pursuant to the provisions of Section 5 hereof, 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.
(iib) The Company shall pay all costs (excluding fees and expenses of Holder(s)' counsel for you and any other holder(s) and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Section 7(aSections 9.2 and 9.3(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 The Holder(s) will pay all costs, fees and expenses in connection with the provisions of registration statement filed pursuant to Section 7(d), the Company shall, in addition to any other equitable or other relief available to you and any other holder(s), be liable for any or all actual damages (which may include damages due to a loss of profit9.3(c).
(iiic) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Warrant Shares included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by you and any other holder(sthe 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.
(ivd) The Company shall indemnify you and any other holder(sthe Holder(s) of the Registrable Securities Warrant Shares to be sold pursuant to any registration statement and each person, if any, who controls you or any other holder(ssuch Holder(s) within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the “1934 "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 1934 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 you in the Placement Agreement to be entered into by and between you and the Company statement.
(the “Placement Agreement”e) and In order to provide for just and equitable contribution under the Act in any case in which (i) any Holder of the 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 set forth 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 Placement Agreementlosses, 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.
(vf) You and any other holder(sThe Holder(s) of the Registrable Securities Warrant Shares to be sold pursuant to a registration statement, and their 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 1934 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 1934 Exchange Act or otherwise, arising from information furnished in writing, by or on behalf of such holder(s)Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in the Placement Agreement pursuant to which you have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in the Placement Agreementstatement.
(vig) Nothing contained in this Agreement shall be construed as requiring you or any other holder(sthe Holder(s) to exercise any portion of their Warrant Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(viih) The Company shall deliver promptly not permit the inclusion of any securities other than the Warrant Shares to you and any other holder(s) of the Registrable Securities participating be included 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 and permit you and the other holder(s) of the Registrable Securities 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 Financial Industry Regulatory Authority (“FINRA”); provided that you and each such holder of the Registrable Securities agree 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 you and any other holder(s) of the Registrable Securities shall reasonably request.
(viii) 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, you 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, you and the other holder(s) 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 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 you and the other holder(s) of the Registrable Securities. You and the other holder(s) 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 you and the other holder(s) of the Registrable Securities and their intended methods of distribution.
(ix) In connection with any registration statement filed pursuant to Section 7 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's securities.
(i) The Company shall furnish, or cause furnish to be furnished, to you and each holder Holder participating in any underwritten the offering and to each underwriter, if any, a signed counterpart, addressed to you, such holder(s) Holder or underwriter, of (i) an opinion of counsel to the Company, dated as of 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, " 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 '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 's counsel and in accountants’ ' letters delivered to underwriters in underwritten public offerings of securities.
(xj) The Company shall promptly notify you and each holder as soon as practicable after the effective date of the Registrable Securities covered by such registration statement, at and in any time when a prospectus relating thereto is required event within 15 months thereafter, make "generally available to be delivered its security holders" (within the meaning of Rule 158 under the Act, upon ) an earnings statement (which need not be audited) complying with Section 11(a) of the Company’s discovery that, or upon Act and covering a period of at least 12 consecutive months beginning after the happening effective date of any event as the registration statement.
(k) The Company shall enter into an underwriting agreement with the managing underwriters selected for such underwriting by Holders holding a result Majority of which, the prospectus Warrant Shares requested to be included in such registration statementunderwriting. 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 then are customarily contained in effectagreements 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, includes an untrue statement at their option, require that any or all of a material fact the representations, warranties and covenants of the Company to or omits for the benefit of such underwriters shall also be made to state any material fact and for the benefit of such Holder(s). Such Holder(s) shall not be required to be stated therein make any representations or necessary warranties to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice you and each holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of you or any such holder(s), agreements with the Company shall promptly prepare and furnish or the underwriters except as they may relate to you or such holder(sHolder(s) and each underwriter, if any, a reasonable number their intended methods 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 madedistribution.
(xil) For purposes of this Agreement, the term “majority” "Majority" in reference to you and the other holder(s) of a Warrants or Warrant or the shares underlying an unexercised WarrantShares, shall mean in excess of fifty percent (50%) of the shares underlying the then outstanding Warrant(sWarrants or Warrant Shares that (i) that are not held by the Company, 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 or Rule 144 promulgated under the Act.
Appears in 3 contracts
Samples: Warrant Agreement (Ceco Environmental Corp), Warrant Agreement (Ceco Environmental Corp), Warrant Agreement (Ceco Environmental Corp)
Covenants of the Company With Respect to Registration. In connection with any registration registrations under Section 7(aSections 7(b) and 7(c) hereof, the Company covenants and agrees as follows:
(i1) The Company shall use its best efforts to file a registration statement within ninety forty-five (9045) calendar days of receipt of any demand therefore therefor 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 accordance with Section 7(a)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 registration statement declared effective at the earliest practicable possible time, and shall furnish you and each holder Holder desiring to sell the Registrable Securities held by you or the other holder(s) as a result of any adjustment made pursuant to the provisions of Section 5 hereof, such number of prospectuses as shall reasonably be requested.
(ii2) The Company shall pay all costs (excluding fees and expenses of Holders' counsel for you and any other holder(s) and any underwriting discounts or selling fees, expenses or commissions), fees and expenses in connection with all any registration statements statement filed pursuant to Section 7(aSections 7(b) and 7(c) 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(d), the Company shall, in addition to any other equitable or other relief available to you and any other holder(s)the Holders, be liable for any or all actual incidental and special damages (which may include and damages due to a loss of profit)profit sustained by the Holders requesting registration of their Registrable Securities.
(iii3) The Company will take all necessary action which may be required in qualifying to qualify or registering register the Registrable Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by you and any other holder(s)the 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.
(iv4) The Company shall indemnify you and any other holder(s) the Holders of the Registrable Securities to be sold pursuant to any registration statement and each person, if any, who controls you or any other holder(s) such 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 “1934 "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 1934 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 you the Underwriter contained in Section 8 of the Placement Agreement to be entered into by and between you Underwriting Agreement, and the Holders shall indemnify the Company (to the “Placement Agreement”) same extent and with the same effect as the provisions pursuant to provide for just and equitable contribution as set forth in which the Placement AgreementUnderwriter have agreed to indemnify the Company.
(v5) You and any other holder(s) The Holders of the Registrable Securities to be sold pursuant to a registration statement, and their 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 1934 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 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such holder(s)Holders, or their 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 8 of the Placement Underwriting Agreement pursuant to which you the Underwriter have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in the Placement AgreementCompany.
(vi6) Nothing contained in this Agreement shall be construed as requiring you or any other holder(s) the Holders to exercise any portion of their Warrant Underwriter's Warrants (or the Warrants purchasable upon exercise thereof) prior to the initial filing of any registration statement or the effectiveness thereof.
(vii7) The Company shall deliver promptly not be entitled to you and include any securities other holder(s) of than 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 and permit you and the other holder(s) of the Registrable Securities 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 Financial Industry Regulatory Authority (“FINRA”); provided that you and each such holder of the Registrable Securities agree 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 you and any other holder(s) of the Registrable Securities shall reasonably request.
(viii) 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, you 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, you and the other holder(s) 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 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 you and the other holder(s) of the Registrable Securities. You and the other holder(s) 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 you and the other holder(s) of the Registrable Securities and their intended methods of distribution.
(ix) In connection with any registration statement filed pursuant to Section 7 hereof, 7(b) hereof without the prior written consent of the Holders of a Majority of the Registrable Securities.
(8) The Company shall furnish, or cause furnish to be furnished, to you and each holder a designated Underwriter of the Holders participating in any underwritten the offering and to each underwriterUnderwriter, if any, a signed counterpart, addressed to you, such holder(s) Holder or underwriter, Underwriter of (i) an opinion of counsel to the Company, dated as of the effective date of such registration statement (and, and if such registration includes relates to an underwritten public offering, an opinion dated the date of the closing under the underwriting agreement), and (ii) a “"cold comfort” letter, " letter dated the effective date of such registration statement (and, if such registration includes 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 's financial statements included in such registration statementstatement (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 such 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 's counsel and in accountants’ "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 Underwriter in underwritten public offerings of securities.
(x9) The Company shall promptly notify you and each holder as soon as practicable after the effective date of the Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required statement make "generally available to be delivered its security holders" (within the meaning of Rule 158 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 earnings statement of a material fact or omits to state any material fact required to (which need not 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 you and each holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of you or any such holder(s), the Company shall promptly prepare and furnish to you or such holder(saudited) 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.
(xi) For purposes of this Agreement, the term “majority” in reference to you and the other holder(s) of a Warrant or the shares underlying an unexercised Warrant, shall mean in excess of fifty percent (50%complying with Section ll(a) of the shares underlying the then outstanding Warrant(s) that have not been resold to the public pursuant to Rule 144 under the Securities Act or a registration statement filed with the Commission under the Act.and covering
Appears in 3 contracts
Samples: Underwriter's Warrant Agreement (Protosource Corp), Underwriter's Warrant Agreement (Protosource Corp), Underwriter's Warrant Agreement (Protosource Corp)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7(a) 7.2 or 7.3 hereof, the Company covenants and agrees as follows:
(ia) The Company shall use its best efforts to file a registration statement within ninety forty-five (9045) days of receipt of any demand therefore therefor in accordance with Section 7(a)7.1, shall use its best efforts to have any registration statement declared effective at the earliest practicable possible time, and shall furnish you and each holder Holder desiring to sell the Registrable Securities held by you or Units underlying the other holder(s) as a result of any adjustment made pursuant to the provisions of Section 5 hereof, Underwriter's Unit Option Warrant and UW Units 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 publically committed to a self-tender or exchange offer and the filing of a registration statement would cause a violation of Rule 10b-6 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.
(iib) The Company shall pay all costs (excluding fees and expenses of Holder(s) counsel for you and any other holder(s) and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Section 7(aSections 7.2 and 7.3(a) hereof including, without limitation, the Company’s '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(d7.4(a), the Company shall, in addition to any other equitable or other relief available to you and any other holder(sthe Holder(s), be liable for any or all actual incidental, special and consequential damages (which may include and damages due to a loss of profit)profit sustained by the Holder(s) requesting registration of their Underwriter's Unit Option Warrant, UW Units Unit Shares and Unit Warrants underlying the Underwriter's Unit Option Warrant.
(iiic) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Underwriter's Unit Option Warrant, UW Units, Unit Shares and Unit Warrants and underxxxxx xxx Xxxxxxxxxxx'x Xxxx Xxxxxx Xxxxxxt included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by you and any other holder(sthe 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.
(ivd) The Company shall indemnify you and any other holder(sthe Holder(s) of the Registrable Securities Underwriter's Unit Option Warrant, UW Units Unit Shares and Unit Warrants to be sold pursuant to any registration statement and each person, if any, who controls you or any other holder(s) such Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the “1934 "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 1934 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 you the Underwriter contained in Section 7 of the Placement Agreement to be entered into by and between you and the Company (the “Placement Agreement”) and to provide for just and equitable contribution as set forth in the Placement Underwriting Agreement.
(ve) You and any other holder(sThe Holder(s) of the Registrable Securities Underwriter's Unit Option Warrant, UW Units Unit Shares and Unit Warrants underlying the Underwriter's Unit Option Warrant to be sold pursuant to a registration statement, and their 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 1934 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 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such holder(s)Holders, or their 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 7 of the Placement Underwriting Agreement pursuant to which you have the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in the Placement AgreementCompany.
(vif) Nothing contained in this Agreement shall be construed as requiring you or any other holder(sthe Holder(s) to exercise any portion of their Underwriter's Unit Option Warrant or the UW Units prior to the initial filing of any registration statement or the effectiveness thereof.
(viig) If the Underwriters' Warrants, UW Units Unit Shares and Unit Warrants underlying the UW 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 to you and any other holder(s) of the Registrable Securities 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 and permit you each Holder and the other holder(s) of the Registrable Securities 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 Financial Industry Regulatory Authority National Association of Securities Dealers, Inc. (“FINRA”"NASD"); provided that you and each such holder of the Registrable Securities agree 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 you and any other holder(s) of the Registrable Securities such Holder shall reasonably request.
(viiij) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the The Company shall enter into an underwriting agreement with one or more underwriters the managing underwriter(s) selected for such underwriting, if any, by Holders holding a Majority of the Underwriter's Unit Option Warrant, UW Units Unit Shares and Unit Warrants underlying the Underwriter's Unit Option Warrant requested to be included in such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, you each Holder and each other holder of the Registrable Securitiessuch 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 underwritersmanaging underwriter(s). If required by the underwriters, you and the other holder(s) of the Registrable Securities The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities Underwriter's Unit Option Warrant, UW Units and the Units underlying the Underwriter's Unit Option Warrant and may, at their option, require that any or all representations the representations, warranties and warranties covenants of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, underwriter(s) shall also be made to and for the benefit of you and the other holder(s) of the Registrable Securitiessuch Holders. You and the other holder(s) of the Registrable Securities Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters underwriter(s) except as they may relate to you and the other holder(s) of the Registrable Securities and such Holders, their intended methods of distribution.
(ix) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to you and each holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to you, such holder(s) or underwriter, of (i) an opinion of counsel to the Company, dated as of 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 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 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 rules and in accountants’ letters delivered to underwriters in underwritten public offerings of securitiesregulations thereunder.
(x) The Company shall promptly notify you 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 you and each holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of you or any such holder(s), the Company shall promptly prepare and furnish to you or such holder(s) 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.
(xik) For purposes of this Agreement, the term “majority” "Majority" in reference to you the Holders of Underwriter's Unit Option Warrant, UW Units Unit Shares and the other holder(s) of a Warrant or the shares underlying an unexercised WarrantUnit Warrants, shall mean in excess of fifty percent (50%) of the shares underlying the then outstanding Warrant(sUnits, assuming the full exercise of all Underwriter's Unit Option Warrant and UW Units that (i) that 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 3 contracts
Samples: Underwriter's Option Agreement for Units (Biodelivery Sciences International Inc), Underwriter's Option Agreement for Units (Biodelivery Sciences International Inc), Underwriter's Option Agreement for Units (Biodelivery Sciences International Inc)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7(a) 7.1 or 7.2 hereof, the Company covenants and agrees as follows:
(ia) The Company shall use its best efforts to file a registration statement within ninety sixty (9060) days of receipt of any demand therefore therefor in accordance with Section 7(a)7.1, shall use its best efforts to have any registration statement declared effective at the earliest practicable possible time, and shall furnish you and each holder desiring to sell the Registrable Securities held by you or the other holder(s) as a result of any adjustment made pursuant to the provisions of Section 5 hereof, 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.
(iib) The Company shall pay all costs (excluding fees and expenses of Holder(s) counsel for you and any other holder(s) and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Section 7(a) Sections 7.1 and 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(d7.4(a), the Company shall, in addition to any other equitable or other relief available to you and any other holder(sthe Holder(s), be liable for any or all actual incidental, special and consequential damages (which may include and damages due to a loss of profit)profit sustained by the Holder(s) requesting registration of their Unit Shares and Unit Warrants underlying the Representative Units.
(iiic) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Unit Shares and Unit Warrants underlying the Representative Units included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by you and any other holder(sthe 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.
(ivd) The Company shall indemnify you and any other holder(sthe Holder(s) of the Registrable Securities Representative’s Unit Purchase Options, Representative Units, Unit Shares and Unit Warrants to be sold pursuant to any registration statement and each person, if any, who controls you or any other holder(s) such Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the “1934 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 1934 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 you the Representative contained in Section 7 of the Placement Agreement to be entered into by and between you and the Company (the “Placement Agreement”) and to provide for just and equitable contribution as set forth in the Placement Underwriting Agreement.
(ve) You and any other holder(sThe Holder(s) of Representative’s Unit Purchase Options, Representative’s Units, Unit Shares and Unit Warrants underlying the Registrable Securities Representative Units to be sold pursuant to a registration statement, and their 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 1934 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 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such holder(s)Holders, or their 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 7 of the Placement Underwriting Agreement pursuant to which you have the Representative has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in the Placement AgreementCompany.
(vif) Nothing contained in this Agreement shall be construed as requiring you or any other holder(sthe Holder(s) to exercise any portion of their Warrant Representative’s Unit Purchase Options or their Unit Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(viig) The If the Unit Shares and Unit Warrants underlying the Representative Units are to be sold in an underwritten public offering, the Company shall deliver promptly use its best efforts to you and any other holder(s) of the Registrable Securities furnish to each Holder 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 and permit you and the other holder(s) of the Registrable Securities 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 Financial Industry Regulatory Authority (“FINRA”); provided that you and each such holder of the Registrable Securities agree 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 you and any other holder(s) of the Registrable Securities shall reasonably request.
(viii) 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, you 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, you and the other holder(s) 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 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 you and the other holder(s) of the Registrable Securities. You and the other holder(s) 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 you and the other holder(s) of the Registrable Securities and their intended methods of distribution.
(ix) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to you and each holder participating in any underwritten offering and to each such underwriter, a signed counterpart, addressed to you, such holder(s) or underwriter, of (i) an opinion of counsel to the Company, dated as of the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion Company 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), 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.
(xh) The Company shall promptly notify you and each holder as soon as practicable after the Effective Date of the Registrable Securities covered by such registration statement, at and in any time when a prospectus relating thereto is required event within 15 months thereafter, have made “generally available to be delivered 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 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 and permit each Holder and underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Company’s discovery that, or upon the happening of any event registration statement 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 it deems reasonably necessary to make the statements therein not misleading in the light comply with applicable securities laws or rules of the circumstances under which they were madeNational Association of Securities Dealers, Inc. (“NASD”). Such investigation shall include access to books, records and upon receipt properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such notice you reasonable extent and each holder shall not effect any sale of securities at such reasonable times and shall immediately cease utilizing or distributing such prospectus. At the request of you or as often as any such holder(s), the Holder shall reasonably request.
(j) The Company shall promptly prepare and furnish to you or enter into an underwriting agreement with the managing underwriter(s) selected for such holder(s) and each underwriterunderwriting, if any, a reasonable number of copies which underwriter shall be subject to approval by Holders of a supplement Majority of Representative’s Unit Purchase Options, Representative Units, Unit Shares and Unit Warrants underlying the Representative Units 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 Units Shares and Unit Warrants 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 an amendment for the benefit of such prospectus as may underwriter(s) shall also be necessary so that, as thereafter delivered made to and for the purchasers benefit of such securities, such prospectus Holders. Such Holders shall not include an untrue statement 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 a material fact distribution, and except for matters related to disclosures with respect to such Holders, contained or omit to state a material fact required to be stated therein or necessary to make contained, in such registration statement under the statements therein not misleading in Act and the light of the circumstances under which they were maderules and regulations thereunder.
(xik) For purposes of this Agreement, the term “majorityMajority” in reference to you the Holders of Representative’s Unit Purchase Options, Representative Units, Unit Shares and the other holder(s) of a Warrant or the shares underlying an unexercised WarrantUnit Warrants, shall mean in excess of fifty percent (50%) of the shares underlying Common Stock of the then outstanding Warrant(s) Company issuable upon full exercise of all Representative’s Unit Purchase Options, including the Unit Warrants included in the Representative Units 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 2 contracts
Samples: Representative’s Option Agreement for Units (NGTV), Representative’s Option Agreement for Units (NGTV)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7(a(8) or (9) hereof, the Company covenants and agrees as follows:
(ia) The Company shall use its best efforts to file a registration statement within ninety thirty (9030) days of receipt of any demand therefore in accordance with Section 7(a)therefor, shall use its best efforts to have any registration statement declared effective at the earliest practicable possible time, and shall furnish you and each holder Holder desiring to sell the Registrable Warrant Securities held by you or the other holder(s) as a result of any adjustment made pursuant to the provisions of Section 5 hereof, such number of prospectuses as shall reasonably be requested.
(iib) The Company shall pay all costs (excluding fees and expenses of Holder(s)' counsel for you and any other holder(s) and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Section 7(aSections (h), (i) and (j) 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(d(10)(a), the Company shall, in addition to any other equitable or other relief available to you and any other holder(sthe Holder(s), be liable for any or all actual damages (which may include damages due to a loss extend the Exercise Period by such number of profit)days as shall equal the delay caused by the Company's failure.
(iiic) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as are reasonably requested by you and any other holder(sthe 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.
(ivd) The Company shall indemnify you and any other holder(sthe Holder(s) of the Registrable Warrant Securities to be sold pursuant to any registration statement and each person, if any, who controls you or any other holder(s) such Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the “1934 "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 1934 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 you the Underwriter contained in Section 7 of the Placement Underwriting Agreement relating to be entered into by and between you and the Company (the “Placement Agreement”) and to provide for just and equitable contribution as set forth in the Placement Agreementoffering.
(ve) You and any other holder(sThe Holder(s) of the Registrable Warrant Securities to be sold pursuant to a registration statement, and their 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 1934 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 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such holder(s)Holders, or their 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 7 of the Placement Underwriting Agreement pursuant to which you have the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in the Placement AgreementCompany.
(vif) Nothing contained in this Agreement shall be construed as requiring you or any other holder(sThe Holder(s) to may exercise any portion of their Warrant Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(viig) 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 to you and any other holder(s) of the Registrable Securities 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 and permit you each Holder and the other holder(s) of the Registrable Securities 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 Financial Industry Regulatory Authority National Association of Securities Dealers, Inc. (“FINRA”); provided that you and each such holder of the Registrable Securities agree not to disclose such information without the prior consent of the Company"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 you and any other holder(s) of the Registrable Securities such Holder or underwriter shall reasonably request.
(viiik) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the The Company shall enter into an underwriting agreement with one or more underwriters selected for such underwritingthe managing underwriters, which may be the Underwriter. Such underwriting agreement shall be satisfactory in form and substance to the Company, you and each other holder of the Registrable Securitiessuch 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 underwritersmanaging 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. If required by the underwriters, you and the other holder(s) of the Registrable Securities The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Warrant Securities and may, at their option, require that any or all representations the representations, warranties and warranties covenants of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, shall also be made to and for the benefit of you and the other holder(s) of the Registrable Securitiessuch Holders. You and the other holder(s) of the Registrable 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 you and the other holder(s) of the Registrable Securities such Holders and their intended methods of distribution.
(ix) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to you and each holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to you, such holder(s) or underwriter, of (i) an opinion of counsel to the Company, dated as of 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.
(x) The Company shall promptly notify you 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 you and each holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of you or any such holder(s), the Company shall promptly prepare and furnish to you or such holder(s) 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.
(xil) For purposes of this Agreement, the term “majority” " Majority" in reference to you and the other holder(s) Holders of a Warrants or Warrant or the shares underlying an unexercised WarrantSecurities, shall mean in excess of fifty percent (50%) of the shares underlying the then outstanding Warrant(sWarrants and Warrant Securities that (i) 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 (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 2 contracts
Samples: Warrant Agreement (Nations Express Inc), Warrant Agreement (Investors Capital Holdings LTD)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7(a) hereof, the Company covenants and agrees as follows:
(i) The Company shall use its best efforts to file a registration statement within ninety (90) days of receipt of any demand therefore in accordance with Section 7(a), shall use its best efforts to have any registration statement declared effective at the earliest practicable time, and shall furnish you and each holder desiring to sell the Registrable Securities held by you or the other holder(s) as a result of any adjustment made pursuant to the provisions of Section 5 hereof, such number of prospectuses as shall reasonably be requested.
(ii) The Company shall pay all costs (excluding fees and expenses of counsel for you and any other holder(s) and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Section 7(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(d), the Company shall, in addition to any other equitable or other relief available to you and any other holder(s), be liable for any or all actual damages (which may include damages due to a loss of profit).
(iii) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by you and any other 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.
(iv) The Company shall indemnify you and any other holder(s) of the Registrable Securities to be sold pursuant to any registration statement and each person, if any, who controls you or any other holder(s) within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the “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 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 you in the Placement Agreement to be entered into by and between you and the Company (the “Placement Agreement”) and to provide for just and equitable contribution as set forth in the Placement Agreement.
(v) You and any other holder(s) of the Registrable Securities to be sold pursuant to a registration statement, and their 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 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 1934 Act or otherwise, arising from information furnished by or on behalf of such holder(s), or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in the Placement Agreement pursuant to which you have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in the Placement Agreement.
(vi) Nothing contained in this Agreement shall be construed as requiring you or any other holder(s) to exercise any portion of their Warrant prior to the initial filing of any registration statement or the effectiveness thereof.
(vii) The Company shall deliver promptly to you and any other holder(s) 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 and permit you and the other holder(s) of the Registrable Securities 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 Financial Industry Regulatory Authority (“FINRA”); provided that you and each such holder of the Registrable Securities agree 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 you and any other holder(s) of the Registrable Securities shall reasonably request.
(viii) 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, you 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, you and the other holder(s) 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 you and the other holder(s) of the Registrable Securities. You and the other holder(s) 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 you and the other holder(s) of the Registrable Securities and their intended methods of distribution.
(ix) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to you and each holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to you, such holder(s) or underwriter, of (i) an opinion of counsel to the Company, dated as of 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.
(x) The Company shall promptly notify you 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 you and each holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of you or any such holder(s), the Company shall promptly prepare and furnish to you or such holder(s) 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.
(xi) For purposes of this Agreement, the term “majority” in reference to you and the other holder(s) of a Warrant or the shares underlying an unexercised Warrant, shall mean in excess of fifty percent (50%) of the shares underlying the then outstanding Warrant(s) 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 2 contracts
Samples: Warrant Agreement (Pansoft CO LTD), Warrant Agreement (Recon Technology, LTD)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7(a) hereof, the Company covenants and agrees as follows:
(i) The Company shall use its best efforts to file a registration statement within ninety forty-five (9045) days of receipt of any demand therefore therefor in accordance with Section 7(a), shall use its best efforts to have any registration statement declared effective at the earliest practicable time, and shall furnish you and each holder desiring to sell the Registrable Securities held by you or the other holder(s) as a result of any adjustment made pursuant to the provisions of Section 5 hereof, such number of prospectuses as shall reasonably be requested.
(ii) The Company shall pay all costs (excluding fees and expenses of counsel for you and any other holder(s) and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Section 7(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(d), the Company shall, in addition to any other equitable or other relief available to you and any other holder(s), be liable for any or all actual damages (which may include damages due to a loss of profit).
(iii) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by you and any other 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.
(iv) The Company shall indemnify you and any other holder(s) of the Registrable Securities to be sold pursuant to any registration statement and each person, if any, who controls you or any other holder(s) within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the “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 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 you in the Placement Underwriting Agreement to be entered into by and between you and the Company (the “Placement Underwriting Agreement”) and to provide for just and equitable contribution as set forth in the Placement Underwriting Agreement.
(v) You and any other holder(s) of the Registrable Securities to be sold pursuant to a registration statement, and their 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 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 1934 Act or otherwise, arising from information furnished by or on behalf of such holder(s), or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in the Placement Underwriting Agreement pursuant to which you have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in the Placement Underwriting Agreement.
(vi) Nothing contained in this Agreement shall be construed as requiring you or any other holder(s) to exercise any portion of their Warrant prior to the initial filing of any registration statement or the effectiveness thereof.
(vii) The Company shall deliver promptly to you and any other holder(s) 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 and permit you and the other holder(s) of the Registrable Securities 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 Financial Industry Regulatory Authority (“FINRA”); provided that you and each such holder of the Registrable Securities agree 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 you and any other holder(s) of the Registrable Securities shall reasonably request.
(viii) 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, you 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, you and the other holder(s) 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 you and the other holder(s) of the Registrable Securities. You and the other holder(s) 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 you and the other holder(s) of the Registrable Securities and their intended methods of distribution.
(ix) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to you and each holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to you, such holder(s) or underwriter, of (i) an opinion of counsel to the Company, dated as of 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.
(x) The Company shall promptly notify you 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 you and each holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of you or any such holder(s), the Company shall promptly prepare and furnish to you or such holder(s) 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.
(xi) For purposes of this Agreement, the term “majority” in reference to you and the other holder(s) of a Warrant or the shares underlying an unexercised Warrant, shall mean in excess of fifty percent (50%) of the shares underlying the then outstanding Warrant(s) 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 2 contracts
Samples: Warrant Agreement (Sino-Global Shipping America, Ltd.), Warrant Agreement (Sino-Global Shipping America, Ltd.)
Covenants of the Company With Respect to Registration. In connection with any registration of Option Shares under Section 7(a8(b) hereof, the Company covenants and agrees as follows:
(i) The Company shall use its best efforts to file a registration statement Registration Statement within ninety sixty (9060) days of receipt of any demand therefore in accordance with Section 7(a)therefor, shall use its best efforts to have any registration statement Registration Statement declared effective at the earliest practicable possible time, shall file such post-effective amendments thereto as may be necessary to maintain such effectiveness for a period of not less than nine months and shall furnish you and each holder Holder desiring to sell the Registrable Securities held by you or the other holder(s) as a result of any adjustment made pursuant to the provisions of Section 5 hereofOption Shares, such number of prospectuses as shall reasonably be requested.
(ii) The Company shall pay all costs (excluding fees and expenses of Holder(s) counsel for you and any other holder(s) and any underwriting or selling commissions), fees and expenses in connection with all registration statements Registration Statements filed pursuant to Section 7(a8(b) 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(d), the Company shall, in addition to any other equitable or other relief available to you and any other holder(s), be liable for any or all actual damages (which may include damages due to a loss of profit).
(iii) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Option Shares included in a registration statement Registration Statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by you and any other holder(sthe 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.
(iv) The In the event that the Company shall indemnify you and becomes aware of any other holder(suntrue statement of a material fact, or of an omission to state a material fact that is required to be stated therein or that is necessary to make the statements contained therein not misleading in the light of the circumstances then existing, the Company will thereupon give notice to the Holder(s) of the Registrable Securities Option Shares of such mistatement or omission. The Company also shall indemnify the Holder(s) of the Option Shares to be sold pursuant to any registration statement Registration Statement and each person, if any, who controls you or any other holder(ssuch 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 “1934 "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 1934 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 you in the Placement Agreement to be entered into by and between you and the Company (the “Placement Agreement”) and to provide for just and equitable contribution as set forth in the Placement AgreementRegistration Statement.
(v) You and any other holder(s) of the Registrable Securities to be sold pursuant to a registration statement, and their 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 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 1934 Act or otherwise, arising from information furnished by or on behalf of such holder(s), or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in the Placement Agreement pursuant to which you have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in the Placement Agreement.
(vi) Nothing contained in this Agreement shall be construed as requiring you or any other holder(s) to exercise any portion of their Warrant prior to the initial filing of any registration statement or the effectiveness thereof.
(vii) The Company shall deliver promptly to you and any other holder(s) 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 and permit you and the other holder(s) of the Registrable Securities 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 Financial Industry Regulatory Authority (“FINRA”); provided that you and each such holder of the Registrable Securities agree 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 you and any other holder(s) of the Registrable Securities shall reasonably request.
(viii) 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, you 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, you and the other holder(s) 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 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 you and the other holder(s) of the Registrable Securities. You and the other holder(s) 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 you and the other holder(s) of the Registrable Securities and their intended methods of distribution.
(ix) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to you and each holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to you, such holder(s) or underwriter, of (i) an opinion of counsel to the Company, dated as of 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.
(x) The Company shall promptly notify you 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 you and each holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of you or any such holder(s), the Company shall promptly prepare and furnish to you or such holder(s) 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.
(xi) For purposes of this Agreement, the term “majority” in reference to you and the other holder(s) of a Warrant or the shares underlying an unexercised Warrant, shall mean in excess of fifty percent (50%) of the shares underlying the then outstanding Warrant(s) 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 2 contracts
Samples: Common Stock Purchase Option (Pioneer Commercial Funding Corp /Ny/), Common Stock Purchase Option (Pioneer Commercial Funding Corp /Ny/)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7(a) 8.1 or 8.4 hereof, the Company covenants and agrees as follows:
(ia) The Company shall use its best efforts to file a registration statement within ninety (90) days of receipt of any demand therefore in accordance with Section 7(a), shall use its best efforts to have any registration statement statements declared effective at the earliest practicable time, time and (i) shall furnish you and each holder Holder desiring to sell the Registrable Securities held by you or the other holder(s) as a result of any adjustment made pursuant to the provisions of Section 5 hereof, such number of prospectuses as shall reasonably be requested, and (ii) shall prepare and file such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective and to comply with the provisions of the Act.
(iib) The Company shall pay all costs costs, expenses and fees (excluding fees and expenses of Holder(s)' counsel for you and any other holder(s) and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Section 7(a) 8.1 or 8.4 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(d8.2(a), the Company shall, in addition to any other equitable or other relief available to you and any other holder(sthe Holder(s), be liable for any or all actual damages (which may include damages due to a loss extend the exercise period of profit)the Warrants by such number of days as shall equal the delay caused by the Company's failure.
(iiic) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by you and any other holder(sthe Holder(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.
(ivd) The Company shall indemnify you and any other holder(sthe Holder(s) of the Registrable Securities to be sold pursuant to any registration statement and each person, if any, who controls you or any other holder(s) such Holders within the meaning of Section 15 16 of the Act or Section 20(a21(a) of the Securities Exchange Act of 1934, as amended (the “1934 "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 1934 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 you in the Placement Agreement to be entered into by and between you and the Company (the “Placement Agreement”is indemnified under subsection 8.2(e) and to provide for just and equitable contribution as set forth in the Placement Agreementhereof.
(ve) You and any other holder(sThe Holder(s) of the Registrable Securities to be sold pursuant to a registration statement, and their 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 16 of the Act or Section 20(a21(a) of the 1934 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 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such holder(s)Holders, or their successors or assigns, for specific inclusion in such registration statement statement; provided, however, that the obligation of any Holder hereunder shall be limited to an amount equal to the same extent and with proceeds received by such Holder upon the same effect as the provisions contained sale of Registrable Securities sold in the Placement Agreement pursuant to which you have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in the Placement Agreementoffering covered by such registration.
(vif) Nothing contained in this Agreement shall be construed as requiring you or any other holder(sFor a period of ninety (90) to exercise any portion of their Warrant prior to days after the initial filing effectiveness of any registration statement filed pursuant to Section 8.1 or 8.4 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 made available to the Holder(s) of the Registrable Securities piggyback registration rights hereunder and (2) a registration statement filed on Forms S-4 or S-8 or a shelf registration on Form S-3) to be or remain effective during the effectiveness thereofof a registration statement or a shelf registration on Form S-3 filed pursuant to Section 8.1 or 8.4 hereof, without the prior written consent of the Holders of the Registrable Securities representing a majority of such securities.
(viig) 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 any registration statement filed pursuant to Section 8.1 or 8.4 hereof, and in any event within fifteen (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 twelve (12) consecutive months beginning after the effective date of the registration statement.
(i) The Company shall deliver promptly to you and any other holder(s) of the Registrable Securities 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 and permit you each Holder and the other holder(s) of the Registrable Securities 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 Financial Industry Regulatory Authority (“FINRA”); provided that you and each such holder of the Registrable Securities agree not to disclose such information without the prior consent of the CompanyNASD. 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 you and any other holder(s) of the Registrable Securities such Holder or underwriter shall reasonably request.
(viiij) If required by the underwriters Nothing contained 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 Agreement shall be satisfactory in form and substance construed as requiring the Holder(s) to exercise their Warrants prior to the Company, you and each other holder initial filing 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, you and the other holder(s) 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 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 you and the other holder(s) of the Registrable Securities. You and the other holder(s) 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 you and the other holder(s) of the Registrable Securities and their intended methods of distribution.
(ix) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to you and each holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to you, such holder(s) or underwriter, of (i) an opinion of counsel to the Company, dated as of 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.
(x) The Company shall promptly notify you 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 you and each holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of you or any such holder(s), the Company shall promptly prepare and furnish to you or such holder(s) 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.
(xi) For purposes of this Agreement, the term “majority” in reference to you and the other holder(s) of a Warrant or the shares underlying an unexercised Warrant, shall mean in excess of fifty percent (50%) of the shares underlying the then outstanding Warrant(s) 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 Acteffectiveness thereof.
Appears in 2 contracts
Samples: Warrant Agreement (Aviation Group Inc), Warrant Agreement (Aviation Group Inc)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7(a) 6.2 hereof, the Company covenants and agrees as follows:
(ia) The Company shall use its best efforts to file a registration statement within ninety (90) days of receipt of any demand therefore in accordance with Section 7(a), shall use its best efforts to have any registration statement Registration Statement declared effective at the earliest practicable possible time, and shall furnish you and each holder Holder desiring to sell the Registrable Securities held by you or the other holder(s) as a result of any adjustment made pursuant to the provisions of Section 5 hereof, Warrant Shares such number of prospectuses as shall reasonably be requested.
(iib) The Company shall pay all costs (excluding fees and expenses of counsel for you and any other holder(s) and any underwriting or selling commissions), fees and expenses in connection with all registration statements Registration Statements filed pursuant to Section 7(a) 6.2 hereof including, without limitation, the Company’s 's legal and accounting fees, printing expenses, and blue sky fees and expenses. If ; and the Company Holder shall fail to comply with the provisions be responsible for its costs including fees and expenses of Section 7(dHolder(s)' counsel, the Company shall, in addition to and including any other equitable underwriting or selling commissions or other relief available to you and charges of any other holder(s), be liable for any or all actual damages (which may include damages due to a loss broker-dealer acting on behalf of profitHolder(s).
(iiic) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Warrant Shares included in a registration statement the Registration Statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by you and any other holder(sthe Holder(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.
(ivd) The Company shall indemnify you and any other holder(sthe Holder(s) of the Registrable Securities Warrant Shares to be sold pursuant to any registration statement Registration Statement and each person, if any, who controls you or any other holder(s) such Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the “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 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 you in the Placement Agreement to be entered into by and between you and the Company (the “Placement Agreement”) and to provide for just and equitable contribution as set forth in the Placement Agreementsubject.
(ve) You and any other holder(sThe Holder(s) of the Registrable Securities Warrant Shares to be sold pursuant to a registration statementRegistration Statement, and their 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(a20 (a) of the 1934 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 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such holder(s)Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in the Placement Agreement pursuant to which you have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in the Placement Agreementa Registration Statement.
(vif) Nothing contained in this Agreement shall be construed as requiring you or any other holder(sthe Holder(s) to exercise any portion of their Warrant Warrants prior to the initial filing of any registration statement Registration Statement or the effectiveness thereof.
(viig) The Company shall furnish to each Holder participating in an offering including Warrant Shares, pursuant to Section 6.2 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.
(h) 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 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.
(i) The Company shall deliver promptly to you and any other holder(s) of the Registrable Securities each Holder participating in an offering including any Warrant Shares pursuant to Section 6.2 hereof, who so requests, and to the offering 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 Registration Statement and permit you each Holder and the other holder(s) of the Registrable Securities 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 Financial Industry Regulatory Authority (“FINRA”); provided that you and each such holder of the Registrable Securities agree 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 you and any other holder(s) of the Registrable Securities such Holder shall reasonably requestrequest as it deems necessary to comply with applicable securities laws and FINRA rules.
(viii) 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, you 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, you and the other holder(s) 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 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 you and the other holder(s) of the Registrable Securities. You and the other holder(s) 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 you and the other holder(s) of the Registrable Securities and their intended methods of distribution.
(ix) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to you and each holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to you, such holder(s) or underwriter, of (i) an opinion of counsel to the Company, dated as of 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.
(x) The Company shall promptly notify you 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 you and each holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of you or any such holder(s), the Company shall promptly prepare and furnish to you or such holder(s) 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.
(xij) For purposes of this Agreement, the term “majorityMajority” in reference to you and the other holder(s) Holders of a Warrants or Warrant or the shares underlying an unexercised WarrantShares, shall mean in excess of fifty percent (50%) of the shares underlying outstanding Warrants or Warrant Shares that (i) are not held by the then outstanding Warrant(sCompany, 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) that have not been resold to the public pursuant to Rule 144 under the Act or a registration statement Registration Statement filed with the Commission under the Act.
Appears in 2 contracts
Samples: Warrant Agreement (Armada Water Assets Inc), Warrant Agreement (Armada Water Assets Inc)
Covenants of the Company With Respect to Registration. In --------------------------------------------------------- connection with any registration under Section 7(a) hereof7.2, the Company covenants and agrees as follows:
(ia) The Company shall use its best efforts to file a registration statement within ninety (90) days of receipt of any demand therefore in accordance with Section 7(a), shall use its best efforts to have any registration statement declared effective at the earliest practicable possible time, and shall furnish you and each holder Holder desiring to sell the Registrable Securities held by you or the other holder(s) as a result of any adjustment made pursuant to the provisions of Section 5 hereof, such number of prospectuses as shall reasonably be requested.
(iib) The Company shall pay all costs (excluding fees and expenses of Holder(s)' counsel for you and any other holder(s) and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Section 7(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(d), the Company shall, in addition to any other equitable or other relief available to you and any other holder(s), be liable for any or all actual damages (which may include damages due to a loss of profit).
(iiic) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by you and any other holder(sthe 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.
(ivd) The Company shall indemnify you and any other holder(sthe Holder(s) of the Registrable Securities to be sold pursuant to any registration statement and each person, if any, who controls you or any other holder(s) such Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the “1934 "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 1934 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 you in the Placement Agreement to be entered into by and between you and the Company (the “Placement Agreement”) and to provide for just and equitable contribution as set forth in the Placement Agreementstatement.
(ve) You and any other holder(sThe Holder(s) of the Registrable Securities to be sold pursuant to a registration statement, and their 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 1934 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 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such holder(s)Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in the Placement Agreement pursuant to which you have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in the Placement Agreementstatement.
(vi) Nothing contained in this Agreement shall be construed as requiring you or any other holder(s) to exercise any portion of their Warrant prior to the initial filing of any registration statement or the effectiveness thereof.
(vii) The Company shall deliver promptly to you and any other holder(s) 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 and permit you and the other holder(s) of the Registrable Securities 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 Financial Industry Regulatory Authority (“FINRA”); provided that you and each such holder of the Registrable Securities agree 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 you and any other holder(s) of the Registrable Securities shall reasonably request.
(viii) 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, you 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, you and the other holder(s) 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 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 you and the other holder(s) of the Registrable Securities. You and the other holder(s) 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 you and the other holder(s) of the Registrable Securities and their intended methods of distribution.
(ix) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to you and each holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to you, such holder(s) or underwriter, of (i) an opinion of counsel to the Company, dated as of 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.
(x) The Company shall promptly notify you 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 you and each holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of you or any such holder(s), the Company shall promptly prepare and furnish to you or such holder(s) 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.
(xif) For purposes of this Agreement, the term “majority” "Majority" in reference to you and the other holder(s) Holders of a Warrant or the shares underlying an unexercised WarrantRegistrable Securities, shall mean in excess of fifty percent (50%) of the shares underlying the then outstanding Warrant(s) Registrable Securities that have not been resold to the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission SEC under the Act.
Appears in 2 contracts
Samples: Warrant Agreement (New York Health Care Inc), Warrant Agreement (New York Health Care Inc)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7(a(8) or (9) hereof, the Company covenants and agrees as follows:
(ia) The Company shall use its best efforts to file a registration statement within ninety thirty (9030) days of receipt of any demand therefore in accordance with Section 7(a)therefor, shall use its best efforts to have any registration statement declared effective at the earliest practicable possible time, and shall furnish you and each holder Holder desiring to sell the Registrable Warrant Securities held by you or the other holder(s) as a result of any adjustment made pursuant to the provisions of Section 5 hereof, such number of prospectuses as shall reasonably be requested.
(iib) The Company shall pay all costs (excluding fees and expenses of Holder(s)' counsel for you and any other holder(s) and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Section 7(aSections (h), (i) and (j) 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(d(10)(a), the Company shall, in addition to any other equitable or other relief available to you and any other holder(sthe Holder(s), be liable for any or all actual damages (which may include damages due to a loss extend the Exercise Period by such number of profit)days as shall equal the delay caused by the Company's failure.
(iiic) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as are reasonably requested by you and any other holder(sthe 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.
(ivd) The Company shall indemnify you and any other holder(sthe Holder(s) of the Registrable Warrant Securities to be sold pursuant to any registration statement and each person, if any, who controls you or any other holder(s) such Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the “1934 "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 1934 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 you the Underwriter contained in Section 7 of the Placement Underwriting Agreement relating to be entered into by and between you and the Company (the “Placement Agreement”) and to provide for just and equitable contribution as set forth in the Placement Agreementoffering.
(ve) You and any other holder(sThe Holder(s) of the Registrable Warrant Securities to be sold pursuant to a registration statement, and their 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 1934 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 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such holder(s)Holders, or their 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 7 of the Placement Underwriting Agreement pursuant to which you have the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in the Placement AgreementCompany.
(vif) Nothing contained in this Agreement shall be construed as requiring you or any other holder(sThe Holder(s) to may exercise any portion of their Warrant Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(viig) 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 to you and any other holder(s) of the Registrable Securities 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 and permit you each Holder and the other holder(s) of the Registrable Securities 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 Financial Industry Regulatory Authority National Association of Securities Dealers, Inc. (“FINRA”); provided that you and each such holder of the Registrable Securities agree not to disclose such information without the prior consent of the Company"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 you and any other holder(s) of the Registrable Securities such Holder or underwriter shall reasonably request.
(viiik) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the The Company shall enter into an underwriting agreement with one or more underwriters selected for such underwritingthe managing underwriters, which may be the Underwriter. Such underwriting agreement shall be satisfactory in form and substance to the Company, you and each other holder of the Registrable Securitiessuch 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 underwritersmanaging 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. If required by the underwriters, you and the other holder(s) of the Registrable Securities The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Warrant Securities and may, at their option, require that any or all representations the representations, warranties and warranties covenants of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, shall also be made to and for the benefit of you and the other holder(s) of the Registrable Securitiessuch Holders. You and the other holder(s) of the Registrable 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 you and the other holder(s) of the Registrable Securities such Holders and their intended methods of distribution.
(ix) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to you and each holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to you, such holder(s) or underwriter, of (i) an opinion of counsel to the Company, dated as of 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.
(x) The Company shall promptly notify you 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 you and each holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of you or any such holder(s), the Company shall promptly prepare and furnish to you or such holder(s) 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.
(xil) For purposes of this Agreement, the term “majority” "Majority" in reference to you and the other holder(s) Holders of a Warrants or Warrant or the shares underlying an unexercised WarrantSecurities, shall mean in excess of fifty percent (50%) of the shares underlying the then outstanding Warrant(sWarrants and Warrant Securities that (i) 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 (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 2 contracts
Samples: Underwriting Agreement (Temporary Financial Services Inc), Warrant Agreement (International Test Systems Inc)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7(a) 7.2 or 7.3 hereof, the Company covenants and agrees as follows:
(ia) The Company shall use its best efforts to file a registration statement within ninety forty-five (9045) days of receipt of any demand therefore therefor in accordance with Section 7(a)7.1, shall use its best efforts to have any registration statement declared effective at the earliest practicable possible time, and shall furnish you and each holder Holder desiring to sell the Registrable Securities held by you or Units underlying the other holder(s) as a result of any adjustment made pursuant to the provisions of Section 5 hereof, Representative's Unit Purchase Option and Representative Units 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.
(iib) The Company shall pay all costs (excluding fees and expenses of Holder(s) counsel for you and any other holder(s) and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Section 7(aSections 7.2 and 7.3(a) hereof including, without limitation, the Company’s '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(d7.4(a), the Company shall, in addition to any other equitable or other relief available to you and any other holder(sthe Holder(s), be liable for any or all actual incidental, special and consequential damages (which may include and damages due to a loss of profit)profit sustained by the Holder(s) requesting registration of their Representative's Unit Purchase Option, Unit Shares and Unit Warrants underlying the Representative Units.
(iiic) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Representative's Unit Purchase Option, Unit Shares and Unit Warrants underlying the Representative Units included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by you and any other holder(sthe 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.
(ivd) The Company shall indemnify you and any other holder(sthe Holder(s) of the Registrable Securities Representative's Unit Purchase Option, Representative Units, Unit Shares and Unit Warrants to be sold pursuant to any registration statement and each person, if any, who controls you or any other holder(s) such Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the “1934 "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 1934 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 you the Representative contained in Section 7 of the Placement Agreement to be entered into by and between you and the Company (the “Placement Agreement”) and to provide for just and equitable contribution as set forth in the Placement Underwriting Agreement.
(ve) You and any other holder(sThe Holder(s) of the Registrable Securities Representative's Unit Purchase Option, Unit Shares and Unit Warrants underlying the Representative Units to be sold pursuant to a registration statement, and their 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 1934 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 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such holder(s)Holders, or their 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 7 of the Placement Underwriting Agreement pursuant to which you have the Representative has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in the Placement AgreementCompany.
(vif) Nothing contained in this Agreement shall be construed as requiring you or any other holder(sthe Holder(s) to exercise any portion of their Warrant Representative's Unit Purchase Option or the Representative Units prior to the initial filing of any registration statement or the effectiveness thereof.
(viig) If the Representative Units, Unit Shares and Unit Warrants 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 to you and any other holder(s) of the Registrable Securities 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 and permit you each Holder and the other holder(s) of the Registrable Securities 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 Financial Industry Regulatory Authority National Association of Securities Dealers, Inc. (“FINRA”"NASD"); provided that you and each such holder of the Registrable Securities agree 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 you and any other holder(s) of the Registrable Securities such Holder shall reasonably request.
(viiij) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the The Company shall enter into an underwriting agreement with one or more underwriters the managing underwriter(s) selected for such underwriting, if any, by Holders holding a Majority of the Representative's Unit Purchase Option, Representative Units, Unit Shares and Unit Warrants underlying the Representative Units requested to be included in such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, you each Holder and each other holder of the Registrable Securitiessuch 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 underwritersmanaging underwriter(s). If required by the underwriters, you and the other holder(s) of the Registrable Securities The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities Representative's Unit Purchase Option, Representative Units and the Units underlying the Representative's Units and may, at their option, require that any or all representations the representations, warranties and warranties covenants of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, underwriter(s) shall also be made to and for the benefit of you and the other holder(s) of the Registrable Securitiessuch Holders. You and the other holder(s) of the Registrable Securities Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters underwriter(s) except as they may relate to you and the other holder(s) of the Registrable Securities and such Holders, their intended methods of distribution.
(ix) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to you and each holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to you, such holder(s) or underwriter, of (i) an opinion of counsel to the Company, dated as of 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 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 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 rules and in accountants’ letters delivered to underwriters in underwritten public offerings of securitiesregulations thereunder.
(x) The Company shall promptly notify you 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 you and each holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of you or any such holder(s), the Company shall promptly prepare and furnish to you or such holder(s) 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.
(xik) For purposes of this Agreement, the term “majority” "Majority" in reference to you the Holders of Representative's Unit Purchase Option, Representative Units, Unit Shares and the other holder(s) of a Warrant or the shares underlying an unexercised WarrantUnit Warrants, shall mean in excess of fifty percent (50%) of the shares underlying the then outstanding Warrant(sUnits, assuming the full exercise of all Representative's Unit Purchase Option and Representative Units that (i) that 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 2 contracts
Samples: Representative's Option Agreement for Units (HyperSpace Communications, Inc.), Representative's Option Agreement for Units (HyperSpace Communications, Inc.)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7(a) 7.2 or 7.3 hereof, the Company covenants and agrees as follows:
(ia) The Company shall use its best efforts to file a registration statement within ninety forty-five (9045) days of receipt of any demand therefore in accordance with pursuant to Section 7(a)7.3, and shall use its best efforts to have any such registration statement declared effective at the earliest practicable time. The Company will promptly notify each seller of such Registrable Securities and confirm such advice in writing, (i) when such registration statement becomes effective, (ii) when any post-effective amendment to such registration statement becomes effective and (iii) of any request by the SEC for any amendment or supplement to such registration statement or any prospectus relating thereto or for additional information. The Company shall furnish to each seller of such Registrable Securities such number of copies of such registration statement and of each such amendment and supplement thereto (in each case including each preliminary prospectus and summary prospectus) in conformity with the requirements of the Act, and shall furnish you and each holder desiring such other documents as such seller may reasonably request in order to sell facilitate the disposition of the Registrable Securities held by you or the other holder(s) as a result of any adjustment made pursuant to the provisions of Section 5 hereof, such number of prospectuses as shall reasonably be requestedseller.
(iib) The Company shall pay all costs (excluding transfer taxes, if any, and fees and expenses of Holder(s)' counsel for you and any other holder(s) and any underwriting the Holder's pro-rata portion of the selling discount or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Section 7(aSections 7.2 and 7.3(a) hereof including, without limitation, the Company’s '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(d7.3(a), the Company shall, in addition to any other equitable or other relief available to you and any other holder(sthe Holder(s), be liable for any or all actual special and consequential damages (which may include damages due to a loss sustained by the Holder(s) requesting registration of profit)their Registrable Securities.
(iiic) The Company shall prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be reasonably necessary to keep such registration statement effective for at least nine months (or such longer period as permitted by the Act), and to comply with the provisions of the Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the seller or sellers of Registrable Securities set forth in such registration statement. If at any time the SEC should institute or threaten to institute any proceedings for the purpose of issuing a stop order suspending the effectiveness of any such registration statement, the Company will promptly notify each seller of such Registrable Securities and will use all reasonable efforts to prevent the issuance of any such stop order or to obtain the withdrawal thereof as soon as possible. The Company will use its good faith reasonable efforts and take all reasonably necessary action which may be required in qualifying or registering the Registrable Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested required by you and any other holder(sthe 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. The Company shall use its good faith reasonable efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities of the United States or any State thereof as may be reasonably necessary to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities.
(ivd) The Company shall indemnify you and any other holder(sthe Holder(s) of the Registrable Securities to be sold pursuant to any registration statement and each person, if any, who controls you or any other holder(s) such Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the “1934 "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 1934 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 you the Representative as contained in the Placement Agreement to be entered into by and between you and the Company (the “Placement Agreement”) and to provide for just and equitable contribution as set forth in the Placement Underwriting Agreement.
(ve) You and If requested by the Company prior to the filing of any other holder(sregistration statement covering the Registrable Securities, each of the Holder(s) of the Registrable Securities to be sold pursuant to a registration statement, and their 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 1934 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 1934 Exchange Act or otherwise, arising from written information furnished by or on behalf of such holder(s)Holder, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in the Placement Underwriting Agreement pursuant to which you have the Representative has agreed to indemnify the Company and Company, except that the maximum amount which may be recovered from each Holder pursuant to provide for just and equitable contribution as set forth in this paragraph or otherwise shall be limited to the Placement Agreementamount of net proceeds received by the Holder from the sale of the Registrable Securities.
(vif) Nothing contained in this Agreement shall be construed as requiring you or any other holder(sthe Holder(s) to exercise any portion of their Warrant Warrants or Underlying Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(viig) 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 7.3 hereof without the prior written consent of the Holders of the Registrable 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 deliver promptly to you and any other holder(s) of the Registrable Securities 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 and permit you each Holder and the other holder(s) of the Registrable Securities 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 Financial Industry Regulatory Authority National Association of Securities Dealers, Inc. (“FINRA”"NASD"); provided that you and each such holder of the Registrable Securities agree 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 you and any other holder(s) of the Registrable Securities such Holder shall reasonably request.
(viiij) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities With respect to a registration statement filed pursuant to this Section 77.3, the Company Company, if requested, shall enter into an underwriting agreement with one or more underwriters the managing underwriter, reasonably satisfactory to the Company, selected for such underwriting by Holders holding a majority of the Registrable Securities requested to be included in such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, you each Holder and each other holder of the Registrable Securitiessuch 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 underwritersmanaging underwriter. If The Holders, if required by the underwriters, you and the other holder(s) of the Registrable Securities shall Underwriter to be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities and Securities, may, at their option, require that any or all representations the representations, warranties and warranties covenants of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, shall also be made to and for the benefit of you and the other holder(s) of the Registrable Securitiessuch Holders. You and the other holder(s) of the Registrable 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 you and the other holder(s) of the Registrable Securities such Holders and their intended methods of distribution.
(ixk) In connection with any registration statement filed pursuant to Section 7 hereof, Notwithstanding the Company shall furnish, provisions of paragraph 7.2 or cause to be furnished, to you and each holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to you, such holder(s) or underwriter, of (i) an opinion of counsel to the Company, dated as of 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.
(x) The Company shall promptly notify you 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 you and each holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of you or any such holder(s), the Company shall promptly prepare and furnish to you or such holder(s) 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.
(xi) For purposes paragraph 7.3 of this Agreement, the term “majority” in reference Company shall not be required to you and effect or cause the other holder(sregistration of Registrable Securities pursuant to paragraph 7.2 or paragraph 7.3 hereof if, within thirty (30) days after its receipt of a Warrant request to register such Registrable Securities (i) counsel for the Company delivers an opinion to the Holders requesting registration of such Registrable Securities, in form and substance satisfactory to counsel to such Holder(s), to the effect that the entire number of Registrable Securities proposed to be sold by such Holder(s) may otherwise be sold, in the manner proposed by such Holder(s), without registration under the Securities Act, or (ii) the shares underlying an unexercised WarrantSEC shall have issued a no-action position, shall mean in excess form and substance satisfactory to counsel for the Holder(s) requesting registration of fifty percent such Registrable Securities, to the effect that the entire number of Registrable Securities proposed to be sold by such Holder(s) may be sold by it, in the manner proposed by such Holder(s), without registration under the Securities Act.
(50%l) After completion of the shares underlying Public Offering, the then outstanding Warrant(sCompany shall not, directly or indirectly, enter into any merger, business combination or consolidation in which (a) the Company shall not be the surviving corporation and (b) the stockholders of the Company are to receive, in whole or in part, capital stock or other securities of the surviving corporation, unless the surviving corporation shall, prior to such merger, business combination or consolidation, agree in writing to assume the obligations of the Company under this Agreement, and for that have not been resold purpose references hereunder to "Registrable Securities" shall be deemed to include the securities which the Holders would be entitled to receive in exchange for Registrable Securities under any such merger, business combination or consolidation, provided that to the public extent such securities to be received are convertible into shares of Common Stock of the issuer thereof, then any such shares of Common Stock as are issued or issuable upon conversion of said convertible securities shall also be included within the definition of "Registrable Securities".
(m) In the event the Company receives from the Holders of any Registrable Securities representing more than 50% of such securities at that time outstanding, a request that the Company effect a registration on Form S-3 with respect to the Registrable Securities and if Form S-3 is available for such offering, the Company shall, as soon as practicable, effect such registration as would permit or facilitate the sale and distribution of the Registrable Securities as are specified in the request. All expenses incurred in connection with a registration requested pursuant to Rule 144 under this Section shall be borne by the Act or a registration statement filed with the Commission under the ActCompany. Registrations effected pursuant to this Section 7.3(e) shall not be counted as registrations pursuant to Section 7.3(a) and 7.3(c) hereof.
Appears in 1 contract
Samples: Representative's Warrant Agreement (Gateway American Properties Corp)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7(a) Sections 9.2 and 9.3 hereof, the Company covenants and agrees as follows:
(i) The Company shall use its best efforts to file a registration statement within ninety (90) days of receipt of any demand therefore in accordance with Section 7(a), shall use its best efforts to have any registration statement declared effective at the earliest practicable time, and shall furnish you and each holder desiring to sell the Registrable Securities held by you or the other holder(s) as a result of any adjustment made pursuant to the provisions of Section 5 hereof, such number of prospectuses as shall reasonably be requested.
(iia) The Company shall pay all costs (excluding fees and expenses of counsel for you and any other holder(s) and any underwriting or selling commissionsHolder(s)' counsel), fees and expenses in connection with all registration statements a Registration Statement filed pursuant to Section 7(a) Sections 9.2 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(d), the Company shall, in addition to any other equitable or other relief available to you and any other holder(s), be liable for any or all actual damages (which may include damages due to a loss of profit).
(iiib) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Warrant Shares included in a registration statement Registration Statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by you and any other holder(sthe 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.
(ivc) The Company shall indemnify you and any other holder(sthe Holder(s) of the Registrable Securities Warrant Shares to be sold pursuant to any registration statement Registration Statement and each person, if any, who controls you or any other holder(s) such Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended amend (the “1934 "Exchange Act”"), against all loss, claim, damage, expense or liability (including all attorneys' fees and other expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which any of them may become subject under the Act, the 1934 Exchange Act or any other statute, common law or otherwise, arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained (x) in the Registration Statement (as from time to time amended and supplemented); (y) in any post-effective amendment or amendments or (z) in any application or other document or written communication (collectively called "application") executed by the Company or based upon information furnished by the Company filed in any jurisdiction in order to qualify the Warrant Shares under the Exchange Act or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements contained therein not misleading, unless such registration statement or omission was made in reliance upon and in conformity with written information furnished to the same extent and with Company by the same effect Holders expressly for use in the registration statement, any amendment or supplement thereto or any application, as the provisions pursuant to which the Company has agreed to indemnify you in the Placement Agreement to be entered into by and between you and the Company (the “Placement Agreement”) and to provide for just and equitable contribution as set forth in the Placement Agreementcase may be.
(vd) You and any other holder(sThe Holder(s) of the Registrable Securities Warrant Shares to be sold pursuant to a registration statement, and their 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 1934 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 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such holder(s)Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in the Placement Agreement pursuant to which you have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in the Placement Agreementstatement.
(vie) Nothing contained in this Agreement shall be construed as requiring you or any other holder(sthe Holder(s) to exercise any portion of their Warrant Warrants prior to the initial filing of any registration statement Registration Statement or the effectiveness thereof.
(vii) The Company shall deliver promptly to you and any other holder(s) 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 and permit you and the other holder(s) of the Registrable Securities 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 Financial Industry Regulatory Authority (“FINRA”); provided that you and each such holder of the Registrable Securities agree 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 you and any other holder(s) of the Registrable Securities shall reasonably request.
(viii) 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, you 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, you and the other holder(s) 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 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 you and the other holder(s) of the Registrable Securities. You and the other holder(s) 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 you and the other holder(s) of the Registrable Securities and their intended methods of distribution.
(ix) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to you and each holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to you, such holder(s) or underwriter, of (i) an opinion of counsel to the Company, dated as of 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.
(x) The Company shall promptly notify you 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 you and each holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of you or any such holder(s), the Company shall promptly prepare and furnish to you or such holder(s) 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.
(xi) For purposes of this Agreement, the term “majority” in reference to you and the other holder(s) of a Warrant or the shares underlying an unexercised Warrant, shall mean in excess of fifty percent (50%) of the shares underlying the then outstanding Warrant(s) 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
Covenants of the Company With Respect to Registration. In --------------------------------------------------------- connection with any registration under Section 7(a) hereof7.2, the Company covenants and agrees as follows:
(ia) The Company shall use its best efforts to file a registration statement within ninety (90) days of receipt of any demand therefore in accordance with Section 7(a), shall use its best efforts to have any registration statement declared effective at the earliest practicable possible time, and shall furnish you and each holder Holder desiring to sell the Registrable Securities held by you or the other holder(s) as a result of any adjustment made pursuant to the provisions of Section 5 hereof, such number of prospectuses as shall reasonably be requested.
(iib) The Company shall pay all costs (excluding fees and expenses of Holder(s)' counsel for you and any other holder(s) and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Section 7(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(d), the Company shall, in addition to any other equitable or other relief available to you and any other holder(s), be liable for any or all actual damages (which may include damages due to a loss of profit).
(iiic) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by you and any other holder(sthe 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.
(ivd) The Company shall indemnify you and any other holder(sthe Holder(s) of the Registrable Securities to be sold pursuant to any registration statement and each person, if any, who controls you or any other holder(s) such Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the “1934 "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 1934 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 you in the Placement Agreement to be entered into by and between you and the Company (the “Placement Agreement”) and to provide for just and equitable contribution as set forth in the Placement Agreementstatement.
(ve) You and any other holder(sThe Holder(s) of the Registrable Securities to be sold pursuant to a registration statement, and their 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 1934 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 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such holder(s)Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in the Placement Agreement pursuant to which you have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in the Placement Agreementstatement.
(vif) 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 Registerable Securities that have not been resold to the public pursuant to a registration statement filed with the SEC under the Act.
(g) Nothing contained in this Agreement shall be construed as requiring you or any other holder(sthe Holder(s) to exercise any portion of their Series A Warrant prior to the initial filing of any registration statement or the effectiveness thereof.
(vii) The Company shall deliver promptly to you and any other holder(s) 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 and permit you and the other holder(s) of the Registrable Securities 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 Financial Industry Regulatory Authority (“FINRA”); provided that you and each such holder of the Registrable Securities agree 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 you and any other holder(s) of the Registrable Securities shall reasonably request.
(viii) 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, you 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, you and the other holder(s) 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 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 you and the other holder(s) of the Registrable Securities. You and the other holder(s) 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 you and the other holder(s) of the Registrable Securities and their intended methods of distribution.
(ix) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to you and each holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to you, such holder(s) or underwriter, of (i) an opinion of counsel to the Company, dated as of 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.
(x) The Company shall promptly notify you 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 you and each holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of you or any such holder(s), the Company shall promptly prepare and furnish to you or such holder(s) 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.
(xi) For purposes of this Agreement, the term “majority” in reference to you and the other holder(s) of a Warrant or the shares underlying an unexercised Warrant, shall mean in excess of fifty percent (50%) of the shares underlying the then outstanding Warrant(s) 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
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7(a) hereof, the The Company covenants and agrees as follows:
(i) The Company shall use its best efforts to file a registration statement within ninety (90) days of receipt of any demand therefore in accordance with Section 7(a), shall use its best efforts to have any registration statement declared effective at the earliest practicable time, and shall furnish you and each holder desiring to sell the Registrable Securities held by you or the other holder(s) as a result of any adjustment made pursuant to the provisions of Section 5 hereof, such number of prospectuses as shall reasonably be requested.
(iia) The Company shall pay all costs costs, fees and expenses (excluding other than underwriting fees, discounts and non-accountable expense allowances applicable to the Registrable Securities and the fees and expenses of counsel for you and any other holder(sretained by the Holders of the Registrable Securities) and any underwriting or selling commissions), fees and expenses in connection with all registration statements Registration Statements filed pursuant to Section 7(a) Sections 7.3 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(d), the Company shall, in addition to any other equitable or other relief available to you and any other holder(s), be liable for any or all actual damages (which may include damages due to a loss of profit).
(iiib) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities included in a registration statement the Registration Statement for offering and sale under the securities or blue sky laws of such states as are reasonably requested by you and any other holder(s), provided that the Company shall not be obligated to execute or file any general consent to service Holders of process or to qualify as a foreign corporation to do business under the laws of any such jurisdictionsecurities.
(ivc) The Company shall indemnify you and any other holder(s) Holder of the Registrable Securities to be sold pursuant to any registration statement Registration Statement and any underwriter or person deemed to be an underwriter under the Act and each person, if any, who controls you such Holder or any other holder(s) 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 “1934 "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 1934 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 you each of the Underwriters as set forth in Section 8 of the Placement Underwriting Agreement to be entered into by and between you and the Company and Network 1 Financial Securities, Inc., dated December 13, 1995, (the “Placement "Underwriting Agreement”") and to provide for just and equitable contribution as set forth in Section 8 of the Placement Underwriting Agreement...
(vd) You and any other holder(s) Any Holder of the Registrable Securities to be sold pursuant to a registration statementRegistration Statement, and their 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 1934 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 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such holder(s)Holder, or their such Holder's 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 the Placement Agreement pursuant to which you the Underwriters have agreed to indemnify the Company as set forth in Section 8 of the Underwriting Agreement and to provide for just and equitable contribution as set forth in Section 8 of the Placement Underwriting Agreement.
(vie) Nothing contained in this Agreement shall be construed as requiring you or any other holder(s) Holder to exercise any portion of their Warrant the Warrants held by such Holder prior to the initial filing of any registration statement Registration Statement or the effectiveness thereof.
(viif) The Company shall promptly deliver promptly to you and any other holder(s) of the Registrable Securities participating in the offering copies of all correspondence between the Securities and Exchange 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 statement in such Registration Statement pursuant to Section 7.3 hereof that requests such correspondence and permit you and to the other holder(s) 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 Financial Industry Regulatory Authority (“FINRA”); provided that you and each such holder National Association of the Registrable Securities agree not to disclose such information without the prior consent of the Company. 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 you and any other holder(s) of the Registrable Securities such Holder or managing underwriter shall reasonably request.
(viii) 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, you 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, you and the other holder(s) 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 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 you and the other holder(s) of the Registrable Securities. You and the other holder(s) 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 you and the other holder(s) of the Registrable Securities and their intended methods of distribution.
(ix) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to you and each holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to you, such holder(s) or underwriter, of (i) an opinion of counsel to the Company, dated as of 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.
(x) The Company shall promptly notify you 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 you and each holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of you or any such holder(s), the Company shall promptly prepare and furnish to you or such holder(s) 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.
(xi) For purposes of this Agreement, the term “majority” in reference to you and the other holder(s) of a Warrant or the shares underlying an unexercised Warrant, shall mean in excess of fifty percent (50%) of the shares underlying the then outstanding Warrant(s) 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
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7(a) 7.1 or 7.2 hereof, the Company covenants and agrees as follows:
(i) The Company shall use its best efforts to file a registration statement within ninety forty-five (9045) days of receipt of any demand therefore therefor in accordance with Section 7(a)7.1, shall use its best efforts to have any registration statement declared effective at the earliest practicable time, and shall furnish you and each holder desiring to sell the Registrable Securities held by you or the other holder(s) holders as a result of any adjustment made pursuant to the provisions of Section 5 hereof, such number of prospectuses as shall reasonably be requested.
(ii) The Company shall pay all costs (excluding fees and expenses of counsel for you and any the other holder(s) holders and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Section 7(a) Sections 7.1 and 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(d)7.4, the Company shall, in addition to any other equitable or other relief available to you and any the other holder(s)holders, be liable for any or all actual damages (which may include damages due to a loss of profit).
(iii) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by you and any the other holder(s)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.
(iv) The Company shall indemnify you and any all other holder(s) holders of the Registrable Securities to be sold pursuant to any registration statement and each person, if any, who controls you or any other holder(s) the holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the “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 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 you in the Placement Agreement to be entered into Underwriting Agreement, dated , 2005, by and between you and the Company (the “Placement Underwriting Agreement”) and to provide for just and equitable contribution as set forth in the Placement Underwriting Agreement.
(v) You and any all other holder(s) holders of the Registrable Securities to be sold pursuant to a registration statement, and their 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 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 1934 Act or otherwise, arising from information furnished by or on behalf of such holder(s)Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in the Placement Underwriting Agreement pursuant to which you have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in the Placement Underwriting Agreement.
(vi) Nothing contained in this Agreement shall be construed as requiring you or any other holder(s) holders to exercise any portion of their Warrant Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(vii) The Company shall deliver promptly to you and any all other holder(s) 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 and permit you and the other holder(s) holders of the Registrable Securities 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 Financial Industry Regulatory Authority National Association of Securities Dealers, Inc. (“FINRANASD”); provided that you and each such holder of the Registrable Securities agree 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 you and any other holder(s) holder of the Registrable Securities shall reasonably request.
(viii) 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, you 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, you and the other holder(s) 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 you and the other holder(s) holders of the Registrable Securities. You and the other holder(s) 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 you and the other holder(s) Holders of the Registrable Securities and their intended methods of distribution.
(ix) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to you and each holder Holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to you, such holder(s) holder or underwriter, of (i) an opinion of counsel to the Company, dated as of 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.
(x) The Company shall promptly notify you 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 you and each holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of you or any such holder(s)holder, the Company shall promptly prepare and furnish to you or such holder(s) 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.
(xi) For purposes of this Agreement, the term “majority” in reference to you and the other holder(s) holders of a Warrant the Warrants or the ordinary shares underlying an unexercised Warrantthe Warrants, shall mean in excess of fifty percent (50%) of the shares underlying the then outstanding Warrant(s) Warrants 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: Warrant Agreement (eFuture Information Technology Inc.)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7(a) hereof, the Company covenants and agrees as follows:
(i) The Company shall use its best efforts to file a registration statement within ninety forty-five (9045) days of receipt of any demand therefore therefor in accordance with Section 7(a), shall use its best efforts to have any registration statement declared effective at the earliest practicable time, and shall furnish you and each holder desiring to sell the Registrable Securities held by you or the other holder(s) holders as a result of any adjustment made pursuant to the provisions of Section 5 hereof, such number of prospectuses as shall reasonably be requested.
(ii) The Company shall pay all costs (excluding fees and expenses of counsel for you and any the other holder(s) holders and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Section 7(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(d), the Company shall, in addition to any other equitable or other relief available to you and any the other holder(s)holders, be liable for any or all actual damages (which may include damages due to a loss of profit).
(iii) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by you and any the other holder(s)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.
(iv) The Company shall indemnify you and any all other holder(s) holders of the Registrable Securities to be sold pursuant to any registration statement and each person, if any, who controls you or any other holder(s) the holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the “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 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 you in the Placement Agreement to be entered into Underwriting Agreement, dated , 2006, by and between you and the Company (the “Placement Underwriting Agreement”) and to provide for just and equitable contribution as set forth in the Placement Underwriting Agreement.
(v) You and any all other holder(s) holders of the Registrable Securities to be sold pursuant to a registration statement, and their 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 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 1934 Act or otherwise, arising from information furnished by or on behalf of such holder(s)Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in the Placement Underwriting Agreement pursuant to which you have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in the Placement Underwriting Agreement.
(vi) Nothing contained in this Agreement shall be construed as requiring you or any other holder(s) holders to exercise any portion of their Warrant Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(vii) The Company shall deliver promptly to you and any all other holder(s) 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 and permit you and the other holder(s) holders of the Registrable Securities 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 Financial Industry Regulatory Authority National Association of Securities Dealers, Inc. (“FINRANASD”); provided that you and each such holder of the Registrable Securities agree 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 you and any other holder(s) holder of the Registrable Securities shall reasonably request.
(viii) 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, you 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, you and the other holder(s) 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 you and the other holder(s) holders of the Registrable Securities. You and the other holder(s) 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 you and the other holder(s) Holders of the Registrable Securities and their intended methods of distribution.
(ix) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to you and each holder Holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to you, such holder(s) holder or underwriter, of (i) an opinion of counsel to the Company, dated as of 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.
(x) The Company shall promptly notify you 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 you and each holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of you or any such holder(s)holder, the Company shall promptly prepare and furnish to you or such holder(s) 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.
(xi) For purposes of this Agreement, the term “majority” in reference to you and the other holder(s) holders of a Warrant the Warrants or the ordinary shares underlying an unexercised Warrantthe Warrants, shall mean in excess of fifty percent (50%) of the shares underlying the then outstanding Warrant(s) Warrants 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: Warrant Agreement (eFuture Information Technology Inc.)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7(a) 9.2 or 9.3 hereof, the Company covenants and agrees as follows:
(ia) The Company shall use its best efforts to file a registration statement within ninety (90) days of receipt of any demand therefore in accordance with Section 7(a)therefore, shall use its best efforts and to have any registration statement statements declared effective at the earliest practicable possible time, and shall furnish you and each holder Holder desiring to sell the Registrable Securities held by you or the other holder(s) as a result of any adjustment made pursuant to the provisions of Section 5 hereof, 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.
(iib) The Company shall pay all costs (excluding fees and expenses of Holder(s)' counsel for you and any other holder(s) and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Section 7(aSections 9.2 and 9.3(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 The Holder(s) will pay all costs, fees and expenses in connection with the provisions of registration statement filed pursuant to Section 7(d), the Company shall, in addition to any other equitable or other relief available to you and any other holder(s), be liable for any or all actual damages (which may include damages due to a loss of profit9.3(c).
(iiic) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Warrant Shares included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by you and any other holder(sthe 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.
(ivd) The Company shall indemnify you and any other holder(sthe Holder(s) of the Registrable Securities Warrant Shares to be sold pursuant to any registration statement and each person, if any, who controls you or any other holder(ssuch Holder(s) within the meaning of Section 15 of the Act or Section 20(aSection
(a) of the Securities Exchange Act of 1934, as amended (the “1934 "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 1934 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 you in the Placement Agreement to be entered into by and between you and the Company statement.
(the “Placement Agreement”e) and In order to provide for just and equitable contribution under the Act in any case in which (i) any Holder of the 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 set forth 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 Placement Agreementlosses, 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.
(vf) You and any other holder(sThe Holder(s) of the Registrable Securities Warrant Shares to be sold pursuant to a registration statement, and their 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 1934 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 1934 Exchange Act or otherwise, arising from information furnished in writing, by or on behalf of such holder(s)Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in the Placement Agreement pursuant to which you have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in the Placement Agreementstatement.
(vig) Nothing contained in this Agreement shall be construed as requiring you or any other holder(sthe Holder(s) to exercise any portion of their Warrant Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(viih) The Company shall deliver promptly not permit the inclusion of any securities other than the Warrant Shares to you and any other holder(s) of the Registrable Securities participating be included 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 and permit you and the other holder(s) of the Registrable Securities 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 Financial Industry Regulatory Authority (“FINRA”); provided that you and each such holder of the Registrable Securities agree 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 you and any other holder(s) of the Registrable Securities shall reasonably request.
(viii) 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, you 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, you and the other holder(s) 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 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 you and the other holder(s) of the Registrable Securities. You and the other holder(s) 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 you and the other holder(s) of the Registrable Securities and their intended methods of distribution.
(ix) In connection with any registration statement filed pursuant to Section 7 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's securities.
(i) The Company shall furnish, or cause furnish to be furnished, to you and each holder Holder participating in any underwritten the offering and to each underwriter, if any, a signed counterpart, addressed to you, such holder(s) Holder or underwriter, of (i) an opinion of counsel to the Company, dated as of 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, " 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 '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 's counsel and in accountants’ ' letters delivered to underwriters in underwritten public offerings of securities.
(xj) The Company shall promptly notify you and each holder as soon as practicable after the effective date of the Registrable Securities covered by such registration statement, at and in any time when a prospectus relating thereto is required event within 15 months thereafter, make "generally available to be delivered its security holders" (within the meaning of Rule 158 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 earnings statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein (which need not misleading in the light of the circumstances under which they were made, and upon receipt of such notice you and each holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of you or any such holder(s), the Company shall promptly prepare and furnish to you or such holder(s) 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.
(xi) For purposes of this Agreement, the term “majority” in reference to you and the other holder(s) of a Warrant or the shares underlying an unexercised Warrant, shall mean in excess of fifty percent (50%) of the shares underlying the then outstanding Warrant(s) 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.be
Appears in 1 contract
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7(a) hereofthe previous paragraph, the Company covenants and agrees as follows:
(i) The the Company shall use its best efforts to file a registration statement within ninety (90) days of receipt of any demand therefore in accordance with Section 7(a), as soon as practicable and shall use its best efforts to have any registration statement declared effective at the earliest practicable possible time, and shall furnish you and each holder Holder desiring to sell the Registrable Securities held by you or the other holder(s) as a result of any adjustment made pursuant to the provisions of Section 5 hereof, Warrant Shares such number of prospectuses as shall reasonably be requested.
; (ii) The the Company shall pay all costs (excluding fees and expenses of Holder's counsel for you and any other holder(s) and any underwriting or selling commissionscommissions or other charges of any broker-dealer acting on behalf of such Holder), fees and expenses in connection with all registration statements filed pursuant to Section 7(a) hereof the previous paragraph including, without limitation, the Company’s 's legal and accounting fees, printing expenses, and blue sky fees and expenses. If ; (iii) 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 you and any other holder(s), be liable for any or all actual damages (which may include damages due to a loss of profit).
(iii) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Warrant Shares included in a the registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by you and any other holder(s)the Holder, 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.
; (iv) The the Company shall indemnify you and any other holder(s) the Holder of the Registrable Securities Warrant Shares to be sold pursuant to any registration statement and each person, if any, who controls you or any other holder(s) such Holder within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the “1934 "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 1934 Act or otherwise, arising from such which relate to any registration statement to the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify you statement(s) prepared in the Placement Agreement to be entered into by and between you and the Company (the “Placement Agreement”) and to provide for just and equitable contribution as set forth in the Placement Agreement.
connection herewith; (v) You and any other holder(s) the Holder of the Registrable Securities Warrant Shares to be sold pursuant to a registration statement, and their successors and assigns, shall severally, severally and not jointly, 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 1934 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 1934 Exchange Act or otherwise, arising from any information furnished by or on behalf of such holder(s)Holder, or their successors or assigns, for specific inclusion in such a registration statement to the same extent and with the same effect as the provisions contained in the Placement Agreement pursuant to which you have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in the Placement Agreement.
statement; (vi) Nothing nothing contained in this Agreement Warrant shall be construed as requiring you or any other holder(s) the Holder to exercise any portion of their this Warrant prior to the initial filing of any registration statement or the effectiveness thereof.
; (vii) The the Company shall prepare and file with the Securities and Exchange Commission (the "Commission") such amendments, post-effective amendments and supplements to the registration statement and the prospectus included therein as may be necessary to keep the registration statement effective until the later of (i) the date when all Warrant Shares registered have been sold or (ii) until such time as the Warrant Shares are free of restriction on resale under the Act (by removal of all restrictive legends, instructions to transfer or otherwise) pursuant to Rule 144; and comply with the provisions of the Act with respect to the disposition of all securities covered by such registration statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof as set forth in such registration statement or supplement of the prospectus; (viii) the Company shall furnish to the Holder participating in an offering including Warrant Shares and to each underwriter, if any, a signed counterpart, addressed to the Holder or 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; (vii) the Company shall, as soon as practicable after the effective date of a registration statement relating to any Warrant Shares pursuant to the previous paragraph, and in any event within fifteen (15) months thereafter, use its reasonable efforts to 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; and (viii) upon the written request of the Holder, the Company shall deliver promptly to you and any other holder(s) of the Registrable Securities Holder participating in an offering including any Warrant Shares pursuant to the offering previous paragraph 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 and shall permit you the Holder and the other holder(s) of the Registrable Securities 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 Financial Industry Regulatory Authority National Association of Securities Dealers, Inc. (“FINRA”"NASD"); provided that you and each such holder of the Registrable Securities agree 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 you and any other holder(s) of the Registrable Securities such Holder shall reasonably request.
(viii) 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, you and each other holder of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such other terms request as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, you and the other holder(s) 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 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 you and the other holder(s) of the Registrable Securities. You and the other holder(s) 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 you and the other holder(s) of the Registrable Securities and their intended methods of distribution.
(ix) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to you and each holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to you, such holder(s) or underwriter, of (i) an opinion of counsel to the Company, dated as of 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.
(x) The Company shall promptly notify you 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 it deems necessary to make the statements therein not misleading in the light of the circumstances under which they were made, comply with applicable securities laws and upon receipt of such notice you and each holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of you or any such holder(s), the Company shall promptly prepare and furnish to you or such holder(s) 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 madeNASD rules.
(xi) For purposes of this Agreement, the term “majority” in reference to you and the other holder(s) of a Warrant or the shares underlying an unexercised Warrant, shall mean in excess of fifty percent (50%) of the shares underlying the then outstanding Warrant(s) 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: Securities Purchase Agreement (Treasure Mountain Holdings Inc)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7(a) Sections 4.1 or 4.2 hereof, the Company covenants and agrees as follows:
(ia) The Company shall use its best efforts to file a registration statement within ninety (90) days of receipt of any demand therefore in accordance with Section 7(a), shall use its best efforts to have cause any registration statement to be declared effective at the earliest practicable possible time, and shall furnish you and each holder desiring to sell the Registrable Securities held by you or the other holder(s) as a result of any adjustment made pursuant to the provisions of Section 5 hereof, Holder such number of prospectuses as shall reasonably be requested.
(iib) The Company shall pay all costs (excluding transfer taxes, if any, fees and expenses of counsel for you and any other holder(s) Holder's counsel, if any, and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Section 7(a) Sections 4.1 or 4.2 hereof including, without limitation, the Company’s '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(d), the Company shall, in addition to any other equitable or other relief available to you and any other holder(s), be liable for any or all actual damages (which may include damages due to a loss of profit).
(iiic) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Common Stock included in a the registration statement for offering and sale under the securities or blue sky laws of such states as are reasonably requested by you and any other holder(s)the Holder, 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.
(ivd) The Company shall indemnify you and any other holder(s) of the Registrable Securities to be sold pursuant to any registration statement Holder and each person, if any, who controls you or any other holder(s) the Holder within the meaning of Section 15 of the Securities Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the “1934 "Exchange Act”"), 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 Securities Act, the 1934 Exchange Act or any other statute, common law or otherwise, arising from out of or based upon any untrue statement or alleged untrue statement of a material fact contained (x) in such registration statement (as from time to time amended and supplemented), (y) in any post-effective amendment or amendments or (z) in any application or other document or written communication (in this Section 4 collectively called an "application") executed by the Company or based upon written information furnished by the Company filed in any jurisdiction in order to qualify the Common Stock under the securities laws thereof or filed with the Securities and Exchange Commission, any state securities commission or agency, the NASD, NASDAQ or any securities exchange or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements contained therein not misleading, unless such statement or omission was made in reliance upon and in conformity with written information furnished to the same extent and with Company by the same effect undersigned expressly for use in such registration statement, any amendment or supplement thereto or any application, as the provisions case may be. If any action is brought against the undersigned or any controlling person of the undersigned in respect of which indemnity may be sought against the Company pursuant to which this Section 4, the undersigned or such controlling person shall within thirty (30) days after the receipt thereby of a summons or complaint notify the Company has agreed to indemnify you in writing of the Placement Agreement to be entered into by and between you institution of such action and the Company shall assume the defense of such action, including the employment and payment of reasonable fees and expenses of counsel (reasonably satisfactory to the “Placement Agreement”undersigned or such controlling person) but the failure to give such notice shall not affect such indemnified person's right to indemnification hereunder except to the extent that the Company's defense of such action was materially adversely affected thereby. The undersigned or such controlling person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the undersigned or such controlling person unless (i) the employment of such counsel shall have been authorized in writing by the Company in connection with the defense of such action, (ii) the Company shall not have employed counsel to provide have charge of the defense of such action or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the fees and expenses of not more than one additional firm of attorneys for just and equitable contribution the undersigned and/or such controlling person shall be borne by the Company. Except as set forth expressly provided above, in the Placement Agreementevent that the Company shall not previously have assumed the defense of any such action or claim, the Company shall not thereafter be liable to the undersigned or such controlling person in investigating, preparing or defending any such action or claim. The Company agrees promptly to notify the undersigned of the commencement of any litigation or proceedings against the Company or any of its officers, directors or controlling persons in connection with the offering and sale of the Common Stock or in connection with such registration statement.
(ve) You and any other holder(s) The Holder of the Registrable Securities Common Stock to be sold pursuant to a registration statement, and their 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 Securities Act or Section 20(a) of the 1934 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 1934 Exchange Act or otherwise, arising from written information furnished by or on behalf of such holder(s)the Holder, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in the Placement Agreement pursuant to which you have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in the Placement Agreementstatement.
(vi) Nothing contained in this Agreement shall be construed as requiring you or any other holder(s) to exercise any portion of their Warrant prior to the initial filing of any registration statement or the effectiveness thereof.
(viif) The Company shall deliver promptly to you and any other holder(s) 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 furnish to the registration statement and permit you and the other holder(s) of the Registrable Securities 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 Financial Industry Regulatory Authority (“FINRA”); provided that you and each such holder of the Registrable Securities agree 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 you and any other holder(s) of the Registrable Securities shall reasonably request.
(viii) 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, you 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, you and the other holder(s) 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 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 you and the other holder(s) of the Registrable Securities. You and the other holder(s) 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 you and the other holder(s) of the Registrable Securities and their intended methods of distribution.
(ix) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to you and each holder participating in any underwritten offering Holder and to each underwriter, if any, a signed counterpart, addressed to you, such holder(s) the Holder or underwriter, if any, of (i) an opinion of counsel to the Company, dated as of 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, " 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 auditors who have issued a report on the Company’s '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 's counsel and in accountants’ ' letters delivered to underwriters in underwritten public offerings of securities.
(x) The Company shall promptly notify you 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 you and each holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of you or any such holder(s), the Company shall promptly prepare and furnish to you or such holder(s) 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.
(xi) For purposes of this Agreement, the term “majority” in reference to you and the other holder(s) of a Warrant or the shares underlying an unexercised Warrant, shall mean in excess of fifty percent (50%) of the shares underlying the then outstanding Warrant(s) 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
Covenants of the Company With Respect to Registration. In --------------------------------------------------------- connection with any registration under Section 7(a) hereof7.2, the Company covenants and agrees as follows:
(ia) The Company shall use its best efforts to file a registration statement within ninety (90) days of receipt of any demand therefore in accordance with Section 7(a), shall use its best efforts to have any registration statement declared effective at the earliest practicable possible time, and shall furnish you and each holder Holder desiring to sell the Registrable Securities held by you or the other holder(s) as a result of any adjustment made pursuant to the provisions of Section 5 hereof, such number of prospectuses as shall reasonably be requested.
(iib) The Company shall pay all costs (excluding fees and expenses of Holder(s)' counsel for you and any other holder(s) and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Section 7(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(d), the Company shall, in addition to any other equitable or other relief available to you and any other holder(s), be liable for any or all actual damages (which may include damages due to a loss of profit).
(iiic) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by you and any other holder(sthe 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.
(ivd) The Company shall indemnify you and any other holder(sthe Holder(s) of the Registrable Securities to be sold pursuant to any registration statement and each person, if any, who controls you or any other holder(s) such Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the “1934 "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 1934 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 you in the Placement Agreement to be entered into by and between you and the Company (the “Placement Agreement”) and to provide for just and equitable contribution as set forth in the Placement Agreementstatement.
(ve) You and any other holder(sThe Holder(s) of the Registrable Securities to be sold pursuant to a registration statement, and their 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 1934 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 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such holder(s)Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in the Placement Agreement pursuant to which you have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in the Placement Agreementstatement.
(vif) 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 Registerable Securities that have not been resold to the public pursuant to a registration statement filed with the SEC under the Act.
(g) Nothing contained in this Agreement shall be construed as requiring you or any other holder(sthe Holder(s) to exercise any portion of their Series B Warrant prior to the initial filing of any registration statement or the effectiveness thereof.
(vii) The Company shall deliver promptly to you and any other holder(s) 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 and permit you and the other holder(s) of the Registrable Securities 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 Financial Industry Regulatory Authority (“FINRA”); provided that you and each such holder of the Registrable Securities agree 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 you and any other holder(s) of the Registrable Securities shall reasonably request.
(viii) 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, you 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, you and the other holder(s) 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 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 you and the other holder(s) of the Registrable Securities. You and the other holder(s) 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 you and the other holder(s) of the Registrable Securities and their intended methods of distribution.
(ix) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to you and each holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to you, such holder(s) or underwriter, of (i) an opinion of counsel to the Company, dated as of 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.
(x) The Company shall promptly notify you 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 you and each holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of you or any such holder(s), the Company shall promptly prepare and furnish to you or such holder(s) 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.
(xi) For purposes of this Agreement, the term “majority” in reference to you and the other holder(s) of a Warrant or the shares underlying an unexercised Warrant, shall mean in excess of fifty percent (50%) of the shares underlying the then outstanding Warrant(s) 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
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7(a) 6.1 or 6.2 hereof, the Company covenants and agrees as follows:
(ia) The Company shall use its best commercially reasonable efforts to file a registration statement within ninety (90) 60 days of receipt of any demand therefore therefor in accordance with Section 7(a)6.1, shall use its best commercially reasonable efforts to have any registration statement declared effective at the earliest practicable possible time, and shall furnish you and each holder Holder desiring to sell the Registrable Securities held by you or the other holder(s) as a result of any adjustment made pursuant to the provisions of Section 5 hereof, 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 6.3(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 Rule 10b-6 under the Securities Exchange Act of 1934, amended (the “Exchange Act”); provided that the Company shall not be entitled to more than three such postponements. In the event of such postponement, the Company shall be required to file the registration statement pursuant to this Section 6.3(a) upon the earlier of (i) the consummation or termination, as applicable, of the event requiring such postponement or (ii) 120 days after the receipt of the initial demand for such registration.
(iib) The Company shall pay all costs (excluding fees and expenses of Holder(s) counsel for you and any other holder(s) and any underwriting or selling commissions), fees and expenses in connection with all any registration statements statement filed pursuant to Section 7(a) hereof Sections 6.1 or 6.2, 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 you and any other holder(s), be liable for any or all actual damages (which may include damages due to a loss of profit).
(iiic) The Company will take all necessary action which commercially reasonable actions that may be required in qualifying to register or registering qualify the Registrable Securities included in a registration statement filed pursuant to Section 6.1 or 6.2 for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by you and any other holder(s), the holders thereof; provided that the Company shall not be obligated to execute or file any general consent to service of process process, to become obligated to pay taxes or to qualify to do business as a foreign corporation to do business under the laws of any such jurisdiction.
(ivd) The Company shall indemnify you and any other holder(s) of the holder Registrable Securities to be sold pursuant to any registration statement and each person, if any, who controls you or any other holder(s) such 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 “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 1934 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 you the Underwriters contained in Section 7 of the Placement Agreement to be entered into by and between you and the Company (the “Placement Agreement”) and to provide for just and equitable contribution as set forth in the Placement Underwriting Agreement.
(ve) You and any other holder(s) The holders of the Registrable Securities to be sold pursuant to a registration statement, and their 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 1934 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 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such holder(s)holders, or their 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 7 of the Placement Underwriting Agreement pursuant to which you the Underwriters have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in the Placement AgreementCompany.
(vif) Nothing contained in this Agreement shall be construed as requiring you or any other holder(s) to exercise any portion of their Warrant prior to the initial filing of any registration statement or the effectiveness thereof.
(vii) The Company shall deliver promptly to you and any other holder(s) of If the Registrable Securities participating are to be sold 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 and permit you and the other holder(s) of the Registrable Securities 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 Financial Industry Regulatory Authority (“FINRA”); provided that you and each such holder of the Registrable Securities agree 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 you and any other holder(s) of the Registrable Securities shall reasonably request.
(viii) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7public offering, 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, you 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, you and the other holder(s) 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 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 you and the other holder(s) of the Registrable Securities. You and the other holder(s) 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 you and the other holder(s) of the Registrable Securities and their intended methods of distribution.
(ix) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to you and each holder participating in any underwritten offering and furnish to each underwriter, a signed counterpart, addressed to you, such holder(s) or underwriter, of underwriter (i) an opinion of counsel to the Company, dated as of the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion Company 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), 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.
(xg) 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 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.
(h) The Company shall deliver promptly notify you any managing underwriters participating in the offering, upon written request, 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 and shall permit each holder and 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. (“NASD”). Such investigation shall include, as appropriate, access to books, records and properties of the Company 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 shall be reasonably requested.
(i) If the Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required are 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 sold 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 you and each holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of you or any such holder(s)underwritten public offering, the Company shall promptly prepare and furnish to you or enter into an underwriting agreement with the managing underwriter(s) selected for such holder(s) and each underwriterunderwriting, if any, a reasonable number by the Company. Such underwriting 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 copies that type used by the managing underwriter(s). The holders shall be parties to any underwriting agreement relating to an underwritten sale of a supplement their Registrable Securities and may, at their option, require that any or all the representations, warranties and covenants of the Company to or an amendment for the benefit of such prospectus as may underwriter(s) shall also be necessary so that, as thereafter delivered made to and for the purchasers benefit of such securities, such prospectus holders. Such holders shall not include an untrue statement 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 a material fact distribution, and except for matters related to disclosures with respect to such Holders, contained or omit to state a material fact required to be stated therein or necessary to make contained, in such registration statement under the statements therein not misleading in the light of the circumstances under which they were made.
(xi) For purposes of this Agreement, the term “majority” in reference to you Securities Act and the other holder(s) of a Warrant or the shares underlying an unexercised Warrant, shall mean in excess of fifty percent (50%) of the shares underlying the then outstanding Warrant(s) 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 Actrules and regulations thereunder.
Appears in 1 contract
Samples: Representative’s Option Agreement for Units (Antex Biologics Inc)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7(a) hereof, the Company covenants and agrees as follows:
(i) The Company shall use its best efforts to file a registration statement within ninety forty-five (9045) days of receipt of any demand therefore therefor in accordance with Section 7(a), shall use its best efforts to have any registration statement declared effective at the earliest practicable time, and shall furnish you and each holder desiring to sell the Registrable Securities held by you or the other holder(s) holders as a result of any adjustment made pursuant to the provisions of Section 5 hereof, such number of prospectuses as shall reasonably be requested.
(ii) The Company shall pay all costs (excluding fees and expenses of counsel for you and any the other holder(s) holders and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Section 7(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(d), the Company shall, in addition to any other equitable or other relief available to you and any the other holder(s)holders, be liable for any or all actual damages (which may include damages due to a loss of profit).
(iii) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by you and any the other holder(s)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.
(iv) The Company shall indemnify you and any all other holder(s) holders of the Registrable Securities to be sold pursuant to any registration statement and each person, if any, who controls you or any other holder(s) the holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the “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 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 you in the Placement Agreement to be entered into Underwriting Agreement, dated , 2005, by and between you and the Company (the “Placement Underwriting Agreement”) and to provide for just and equitable contribution as set forth in the Placement Underwriting Agreement.
(v) You and any all other holder(s) holders of the Registrable Securities to be sold pursuant to a registration statement, and their 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 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 1934 Act or otherwise, arising from information furnished by or on behalf of such holder(s)Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in the Placement Underwriting Agreement pursuant to which you have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in the Placement Underwriting Agreement.
(vi) Nothing contained in this Agreement shall be construed as requiring you or any other holder(s) holders to exercise any portion of their Warrant Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(vii) The Company shall deliver promptly to you and any all other holder(s) 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 and permit you and the other holder(s) holders of the Registrable Securities 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 Financial Industry Regulatory Authority National Association of Securities Dealers, Inc. (“FINRANASD”); provided that you and each such holder of the Registrable Securities agree 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 you and any other holder(s) holder of the Registrable Securities shall reasonably request.
(viii) 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, you 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, you and the other holder(s) 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 you and the other holder(s) holders of the Registrable Securities. You and the other holder(s) 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 you and the other holder(s) Holders of the Registrable Securities and their intended methods of distribution.
(ix) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to you and each holder Holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to you, such holder(s) holder or underwriter, of (i) an opinion of counsel to the Company, dated as of 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.
(x) The Company shall promptly notify you 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 you and each holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of you or any such holder(s)holder, the Company shall promptly prepare and furnish to you or such holder(s) 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.
(xi) For purposes of this Agreement, the term “majority” in reference to you and the other holder(s) holders of a Warrant the Warrants or the ordinary shares underlying an unexercised Warrantthe Warrants, shall mean in excess of fifty percent (50%) of the shares underlying the then outstanding Warrant(s) Warrants 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: Warrant Agreement (eFuture Information Technology Inc.)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7(a) 8.2 hereof, the Company covenants and agrees as follows:
(i) The Company shall use its best efforts to file a registration statement within ninety (90) days of receipt of any demand therefore in accordance with Section 7(a), shall use its best efforts to have any registration statement declared effective at the earliest practicable time, and shall furnish you and each holder desiring to sell the Registrable Securities held by you or the other holder(s) as a result of any adjustment made pursuant to the provisions of Section 5 hereof, such number of prospectuses as shall reasonably be requested.
(iia) The Company shall pay all costs (excluding fees and expenses of the Holder(s)’ counsel for you and any other holder(s) and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Section 7(a) 8.2 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(d), the Company shall, in addition to any other equitable or other relief available to you and any other holder(s), be liable for any or all actual damages (which may include damages due to a loss of profit).
(iiib) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Warrant Shares included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by you and any other holder(sthe 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.
(ivc) The Company shall indemnify you and any other holder(sthe Holder(s) of the Registrable Securities Warrant Shares to be sold pursuant to any registration statement and each person, if any, who controls you or any other holder(ssuch Holder(s) within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the “1934 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 1934 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 you in the Placement Agreement to be entered into by and between you and the Company (the “Placement Agreement”) and to provide for just and equitable contribution as set forth in the Placement Agreementstatement.
(v) You and any other holder(s) of the Registrable Securities to be sold pursuant to a registration statement, and their 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 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 1934 Act or otherwise, arising from information furnished by or on behalf of such holder(s), or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in the Placement Agreement pursuant to which you have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in the Placement Agreement.
(vid) Nothing contained in this Agreement shall be construed as requiring you or any other holder(sthe Holder(s) to exercise any portion of their Warrant the Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(viie) The Company shall deliver promptly furnish to you and any other holder(s) of the Registrable Securities each Holder 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 and permit you and the other holder(s) of the Registrable Securities 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 Financial Industry Regulatory Authority (“FINRA”); provided that you and each such holder of the Registrable Securities agree 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 you and any other holder(s) of the Registrable Securities shall reasonably request.
(viii) 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, you 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, you and the other holder(s) 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 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 you and the other holder(s) of the Registrable Securities. You and the other holder(s) 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 you and the other holder(s) of the Registrable Securities and their intended methods of distribution.
(ix) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to you and each holder participating in any underwritten offering and to each underwriter, if any, a signed counterpart, addressed to you, such holder(s) Holder or underwriter, of (i) an opinion of counsel to the Company, dated as of 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, letter dated the effective date of such registration statement (and, if such registration includes 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, 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.
(xf) The Company shall promptly notify you shall, as soon as practicable after the effective date of any registration statement filed pursuant to this Section 8, and each holder in any event within 15 months thereafter, make “generally available to its security holders” (within the meaning of the Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered Rule 158 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 earnings statement of a material fact or omits to state any material fact required to (which need not 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 you and each holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of you or any such holder(s), the Company shall promptly prepare and furnish to you or such holder(saudited) 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.
(xi) For purposes of this Agreement, the term “majority” in reference to you and the other holder(s) of a Warrant or the shares underlying an unexercised Warrant, shall mean in excess of fifty percent (50%complying with Section 11(a) of the shares underlying Act and covering a period of at least 12 consecutive months beginning after the then outstanding Warrant(s) that have not been resold to effective date of the public pursuant to Rule 144 under the Act or a registration statement filed with the Commission under the Actstatement.
Appears in 1 contract
Samples: Warrant Agreement (Algodon Wines & Luxury Development Group, Inc.)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7(a) Sections 9.2 or 9.3 hereof, the Company covenants and agrees as follows:
(ia) The In connection with any registration under Section 9.3 hereof, the Company shall use its reasonable best efforts to file a registration statement within ninety one hundred and twenty (90120) days of receipt of any demand therefore in accordance with Section 7(a)therefor, shall use its best efforts and to have any registration statement statements declared effective at the earliest practicable possible time, and shall furnish you and each holder Holder desiring to sell the Registrable Securities held by you or the other holder(s) as a result of any adjustment made pursuant to the provisions of Section 5 hereof, Warrant Shares such number of prospectuses as shall reasonably be requested.
(iib) The Company shall pay all costs (excluding fees and expenses of any Holder's counsel for you and any other holder(s) and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Section 7(aSections 9.2 and 9.3(a) hereof including, without limitation, the Company’s '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(d), the Company shall, in addition to any other equitable or other relief available to you and any other holder(s), be liable for any or all actual damages (which may include damages due to a loss of profit).
(iiic) 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 a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by you and any other holder(sthe 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.
(ivd) The Company shall indemnify you and any other holder(sthe Holder(s) of the Registrable Securities Warrant Shares to be sold pursuant to any registration statement and each person, if any, who controls you or any other holder(s) such Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the “1934 "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 1934 Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect and subject to the same procedures as are provided by the provisions pursuant to which the Company has agreed to indemnify you each of the Underwriters contained in Section 7 of the Placement Agreement to be entered into by and between you and the Company (the “Placement Agreement”) and to provide for just and equitable contribution as set forth in the Placement Underwriting Agreement.
(ve) You and any other holder(sThe Holder(s) of the Registrable Securities Warrant Shares to be sold pursuant to a registration statement, and their 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 1934 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 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such holder(s)Holders, or their 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 7 of the Placement Underwriting Agreement pursuant to which you the Underwriters have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in the Placement AgreementCompany.
(vif) Nothing contained in this Agreement shall be construed as requiring you or any other holder(sthe Holder(s) to exercise any portion of their Representative's Warrant prior to the initial filing of any registration statement or the effectiveness thereof.
(viig) The Company shall deliver promptly not permit the inclusion of any securities other than the Warrant Shares to you and any other holder(s) of the Registrable Securities participating be included 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 and permit you and the other holder(s) of the Registrable Securities 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 Financial Industry Regulatory Authority (“FINRA”); provided that you and each such holder of the Registrable Securities agree 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 you and any other holder(s) of the Registrable Securities shall reasonably request.
(viii) 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, you 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, you and the other holder(s) 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 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 you and the other holder(s) of the Registrable Securities. You and the other holder(s) 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 you and the other holder(s) of the Registrable Securities and their intended methods of distribution.
(ix) In connection with any registration statement filed pursuant to Section 7 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's securities.
(h) The Company shall furnish, or cause furnish to be furnished, to you and each holder Holder participating in any underwritten the offering and to each underwriter, if any, a signed counterpart, addressed to you, such holder(s) Holder or underwriter, of (i) an opinion of counsel to the Company, dated as of 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, " 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 '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 's counsel and in accountants’ ' letters delivered to underwriters in underwritten public offerings of securities.
(xi) The Company shall promptly notify you and each holder as soon as practicable after the effective date of the Registrable Securities covered by such registration statement, at and in any time when a prospectus relating thereto is required event within 15 months thereafter, make "generally available to be delivered its security holders" (within the meaning of Rule 158 under the Act, upon ) an earnings statement (which need not be audited) complying with Section 11(a) of the Company’s discovery that, or upon Act and covering a period of at least 12 consecutive months beginning after the happening effective date 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 .
(j) In connection with any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances registration under which they were made, and upon receipt of such notice you and each holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of you or any such holder(s)Section 9.3 hereof, the Company shall promptly prepare 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. Such agreement shall be satisfactory in form and furnish substance to you 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 such holder(s) all the representations, warranties and each underwriter, if any, a reasonable number covenants of copies of a supplement the Company to or an amendment for the benefit of such prospectus as may underwriters shall also be necessary so that, as thereafter delivered made to and for the purchasers benefit of such securities, such prospectus Holders. Such Holders shall not include an untrue statement of a material fact or omit to state a material fact be required to be stated therein make any representations or necessary warranties to make or agreements with the statements therein not misleading in Company or the light underwriters except as they may relate to such Holders and their intended methods of the circumstances under which they were madedistribution.
(xik) For purposes of this Agreement, the term “majority” "Majority" in reference to you and the other holder(s) of a Representative's Warrants or Warrant or the shares underlying an unexercised WarrantShares, shall mean in excess of fifty percent (50%) of the shares underlying the then outstanding Warrant(sWarrant Shares (calculated as provided in the following sentence) 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 Rule 144 under the Act or a registration statement filed with the Commission under the Act. For purposes of the preceding sentence, the Holder of a Representative's Warrant shall be deemed the holder of the aggregate number of Warrant Shares that are acquirable upon exercise thereof.
Appears in 1 contract
Samples: Representative's Warrant Agreement (Integrated Technology Usa Inc)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7(a) 7.2 or 7.3 hereof, the Company covenants and agrees as follows:
(ia) The Company shall use its best efforts to file a registration statement within ninety forty-five (9045) days of receipt of any demand therefore therefor in accordance with Section 7(a)7.1, shall use its best efforts to have any registration statement declared effective at the earliest practicable possible time, and shall furnish you and each holder Holder desiring to sell the Registrable Securities held by you or Units underlying the other holder(s) as a result of any adjustment made pursuant to the provisions of Section 5 hereof, Underwriter’s Unit Option Warrant and UW Units 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 Rule 10b-6 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.
(iib) The Company shall pay all costs (excluding fees and expenses of Holder(s) counsel for you and any other holder(s) and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Section 7(aSections 7.2 and 7.3(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(d7.4(a), the Company shall, in addition to any other equitable or other relief available to you and any other holder(sthe Holder(s), be liable for any or all actual incidental, special and consequential damages (which may include and damages due to a loss of profit)profit sustained by the Holder(s) requesting registration of their Underwriter’s Unit Option Warrant, UW Units Unit Shares and Unit Warrants underlying the Underwriter’s Unit Option Warrant.
(iiic) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Underwriter’s Uxxx Xxxxxx Xxxxxxx, XX Xxxxx, Xxxx Xxxxxx and Unit Warrants and underlying the Underwriter’s Unit Option Warrant included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by you and any other holder(sthe 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.
(ivd) The Company shall indemnify you and any other holder(sthe Holder(s) of the Registrable Securities Underwriter’s Unit Option Warrant, UW Units Unit Shares and Unit Warrants to be sold pursuant to any registration statement and each person, if any, who controls you or any other holder(s) such Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the “1934 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 1934 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 you the Underwriter contained in Section 7 of the Placement Agreement to be entered into by and between you and the Company (the “Placement Agreement”) and to provide for just and equitable contribution as set forth in the Placement Underwriting Agreement.
(ve) You and any other holder(sThe Holder(s) of the Registrable Securities Underwriter’s Unit Option Warrant, UW Units Unit Shares and Unit Warrants underlying the Underwriter’s Unit Option Warrant to be sold pursuant to a registration statement, and their 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 1934 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 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such holder(s)Holders, or their 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 7 of the Placement Underwriting Agreement pursuant to which you have the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in the Placement AgreementCompany.
(vif) Nothing contained in this Agreement shall be construed as requiring you or any other holder(sthe Holder(s) to exercise any portion of their Underwriter’s Unit Option Warrant or the UW Units prior to the initial filing of any registration statement or the effectiveness thereof.
(viig) The If the Underwriters’ Warrants, UW Units Unit Shares and Unit Warrants underlying the UW Units are to be sold in an underwritten public offering, the Company shall deliver promptly use its best efforts to you and any other holder(s) of the Registrable Securities furnish to each Holder 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 and permit you and the other holder(s) of the Registrable Securities 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 Financial Industry Regulatory Authority (“FINRA”); provided that you and each such holder of the Registrable Securities agree 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 you and any other holder(s) of the Registrable Securities shall reasonably request.
(viii) 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, you 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, you and the other holder(s) 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 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 you and the other holder(s) of the Registrable Securities. You and the other holder(s) 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 you and the other holder(s) of the Registrable Securities and their intended methods of distribution.
(ix) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to you and each holder participating in any underwritten offering and to each such underwriter, a signed counterpart, addressed to you, such holder(s) or underwriter, of (i) an opinion of counsel to the Company, dated as of the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion Company 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), 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.
(xh) The Company shall promptly notify you and each holder as soon as practicable after the Effective Date of the Registrable Securities covered by such registration statement, at and in any time when a prospectus relating thereto is required event within 15 months thereafter, have made “generally available to be delivered 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 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 and permit each Holder and underwriter to do such investigation, upon reasonable advance notice, with respect to information contained in or omitted from the Company’s discovery that, or upon the happening of any event registration statement 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 it deems reasonably necessary to make the statements therein not misleading in the light comply with applicable securities laws or rules of the circumstances under which they were madeNational Association of Securities Dealers, Inc. (“NASD”). Such investigation shall include access to books, records and upon receipt properties and opportunities to discuss the business of the Company with its officers and independent auditors, all to such notice you reasonable extent and each holder shall not effect any sale of securities at such reasonable times and shall immediately cease utilizing or distributing such prospectus. At the request of you or as often as any such holder(s), the Holder shall reasonably request.
(j) The Company shall promptly prepare and furnish to you or enter into an underwriting agreement with the managing underwriter(s) selected for such holder(s) and each underwriterunderwriting, if any, by Holders holding a reasonable number Majority of copies the Underwriter’s Unit Option Warrant, UW Units Unit Shares and Unit Warrants underlying the Underwriter’s Unit Option Warrant requested to be included in such underwriting. Such underwriting 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 a supplement that type used by the managing underwriter(s). The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Underwriter’s Unit Option Warrant, UW Units and the Units underlying the Underwriter’s Unit Option Warrant and may, at their option, require that any or all the representations, warranties and covenants of the Company to or an amendment for the benefit of such prospectus as may underwriter(s) shall also be necessary so that, as thereafter delivered made to and for the purchasers benefit of such securities, such prospectus Holders. Such Holders shall not include an untrue statement 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 a material fact distribution, and except for matters related to disclosures with respect to such Holders, contained or omit to state a material fact required to be stated therein or necessary to make contained, in such registration statement under the statements therein not misleading in Act and the light of the circumstances under which they were maderules and regulations thereunder.
(xik) For purposes of this Agreement, the term “majorityMajority” in reference to you the Holders of Underwriter’s Unit Option Warrant, UW Units Unit Shares and the other holder(s) of a Warrant or the shares underlying an unexercised WarrantUnit Warrants, shall mean in excess of fifty percent (50%) of the shares underlying the then outstanding Warrant(sUnits, assuming the full exercise of all Underwriter’s Unit Option Warrant and UW Units that (i) that 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: Underwriter’s Option Agreement for Units (Pelion Systems Inc)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7(a) Sections 9.2 or 9.3 hereof, the Company covenants and agrees as follows:
(ia) The In connection with any registration under Section 9.3 hereof, the Company shall use its best efforts to file a registration statement within ninety one hundred and twenty (90120) days of receipt of any demand therefore in accordance with Section 7(a)therefor, shall use its best efforts and to have any registration statement statements declared effective at the earliest practicable possible time, and shall furnish you and each holder Holder desiring to sell the Registrable Securities held by you or the other holder(s) as a result of any adjustment made pursuant to the provisions of Section 5 hereof, Warrant Shares such number of prospectuses as shall reasonably be requested.
(iib) The Company shall pay all costs (excluding fees and expenses of a single counsel for you and any other holder(s) all Holders up to a $25,000 maximum and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Section 7(aSections 9.2 and 9.3(a) hereof including, without limitation, the Company’s '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(d), the Company shall, in addition to any other equitable or other relief available to you and any other holder(s), be liable for any or all actual damages (which may include damages due to a loss of profit).
(iiic) 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 a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by you and any other holder(sthe 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.
(ivd) The Company shall indemnify you and any other holder(sthe Holder(s) of the Registrable Securities Warrant Shares to be sold pursuant to any registration statement and each person, if any, who controls you or any other holder(s) such Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the “1934 "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 1934 Exchange Act or otherwise, arising from such registration statement but only to the same extent and with the same effect and subject to the same procedures as are provided by the provisions pursuant to which the Company has agreed to indemnify you each of the Underwriters contained in Section 7 of the Placement Agreement to be entered into by and between you and the Company (the “Placement Agreement”) and to provide for just and equitable contribution as set forth in the Placement Underwriting Agreement.
(ve) You and any other holder(sThe Holder(s) of the Registrable Securities Warrant Shares to be sold pursuant to a registration statement, and their 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 1934 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 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such holder(s)Holders, or their 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 7 of the Placement Underwriting Agreement pursuant to which you the Underwriters have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in the Placement AgreementCompany.
(vif) Nothing contained in this Agreement shall be construed as requiring you or any other holder(sthe Holder(s) to exercise any portion of their Representative's Warrant prior to the initial filing of any registration statement or the effectiveness thereof.
(viig) The Company shall deliver promptly not permit the inclusion of any securities other than the Warrant Shares to you and any other holder(s) of the Registrable Securities participating be included 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 and permit you and the other holder(s) of the Registrable Securities 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 Financial Industry Regulatory Authority (“FINRA”); provided that you and each such holder of the Registrable Securities agree 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 you and any other holder(s) of the Registrable Securities shall reasonably request.
(viii) 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, you 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, you and the other holder(s) 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 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 you and the other holder(s) of the Registrable Securities. You and the other holder(s) 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 you and the other holder(s) of the Registrable Securities and their intended methods of distribution.
(ix) In connection with any registration statement filed pursuant to Section 7 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's securities.
(h) The Company shall furnish, or cause furnish to be furnished, to you and each holder Holder participating in any underwritten the offering and to each underwriter, if any, a signed counterpart, addressed to you, such holder(s) Holder or underwriter, of (i) an opinion of counsel to the Company, dated as of 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, " 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 '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 's counsel and in accountants’ ' letters delivered to underwriters in underwritten public offerings of securities.
(xi) The Company shall promptly notify you and each holder as soon as practicable after the effective date of the Registrable Securities covered by such registration statement, at and in any time when a prospectus relating thereto is required event within 15 months thereafter, make "generally available to be delivered its security holders" (within the meaning of Rule 158 under the Act, upon ) an earnings statement (which need not be audited) complying with Section 11(a) of the Company’s discovery that, or upon Act and covering a period of at least 12 consecutive months beginning after the happening effective date 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 .
(j) In connection with any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances registration under which they were made, and upon receipt of such notice you and each holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of you or any such holder(s)Section 9.3 hereof, the Company shall promptly prepare 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. Such agreement shall be satisfactory in form and furnish substance to you 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 such holder(s) all the representations, warranties and each underwriter, if any, a reasonable number covenants of copies of a supplement the Company to or an amendment for the benefit of such prospectus as may underwriters shall also be necessary so that, as thereafter delivered made to and for the purchasers benefit of such securities, such prospectus Holders. Such Holders shall not include an untrue statement of a material fact or omit to state a material fact be required to be stated therein make any representations or necessary warranties to make or agreements with the statements therein not misleading in Company or the light underwriters except as they may relate to such Holders and their intended methods of the circumstances under which they were madedistribution.
(xik) For purposes of this Agreement, the term “majority” "Majority" in reference to you and the other holder(s) of a Representative's Warrants or Warrant or the shares underlying an unexercised WarrantShares, shall mean in excess of fifty percent (50%) of the shares underlying the then outstanding Warrant(sWarrant Shares (calculated as provided in the following sentence) 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 Rule 144 under the Act or a registration statement filed with the Commission under the Act. For purposes of the preceding sentence, the Holder of a Representative's Warrant shall be deemed the holder of the aggregate number of Warrant Shares that acquirable upon exercise thereof.
Appears in 1 contract
Samples: Representative's Warrant Agreement (Thermoenergy Corp)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7(a) 7.1 hereof, the Company covenants and agrees as follows:
(ia) The Company shall use its best efforts to file a registration statement within ninety (90) days of receipt of any demand therefore in accordance with Section 7(a), shall use its best efforts to have any registration statement statements declared effective at the earliest practicable time, time and shall furnish you and each holder Holder desiring to sell the Registrable Securities held by you or the other holder(s) as a result of any adjustment made pursuant to the provisions of Section 5 hereof, such number of prospectuses as shall reasonably be requested.
(iib) The Company shall pay all costs costs, expenses and fees (excluding fees and expenses of Holder(s)' counsel for you and any other holder(s) and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Section 7(a) 7.1 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(d7.2(a), the Company shall, in addition to any other equitable or other relief available to you and any other holder(sthe Holder(s), be liable for any or all actual damages (which may include damages due to a loss extend the exercise period of profit)the Warrants by such number of days as shall equal the delay caused by the Company's failure.
(iiic) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by you and any other holder(sthe Holder(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.
(ivd) The Company shall indemnify you and any other holder(sthe Holder(s) of the Registrable Securities to be sold pursuant to any registration statement and each person, if any, who controls you or any other holder(s) such Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the “1934 Act”"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 1934 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 you in the Placement Agreement to be entered into by and between you and the Company (the “Placement Agreement”is indemnified under subsection 7.2(e) and to provide for just and equitable contribution as set forth in the Placement Agreementhereof.
(ve) You and any other holder(sThe Holder(s) of the Registrable Securities to be sold pursuant to a registration statement, and their 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 1934 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 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such holder(s)Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in the Placement Agreement pursuant to which you have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in the Placement Agreementstatement.
(vif) Nothing contained in this Agreement shall be construed as requiring you or any other holder(sFor a period of ninety (90) to exercise any portion of their Warrant prior to days after the initial filing effectiveness of any registration statement filed pursuant to Section 7.1 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 made available to the Holder(s) of the Registrable Securities piggyback registration rights hereunder and (2) a registration statement filed on Forms S-4 or S-8 or a shelf registration on Form S-3) to be or remain effective during the effectiveness thereofof a registration statement or a shelf registration on Form S-3 filed pursuant to Section 7.1 hereof, without the prior written consent of the Holders of the Registrable Securities representing a majority of such securities.
(viig) 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 any registration statement filed pursuant to Section 7.1 hereof, and in any event within fifteen (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 twelve (12) consecutive months beginning after the effective date of the registration statement.
(i) The Company shall deliver promptly to you and any other holder(s) of the Registrable Securities 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 and permit you each Holder and the other holder(s) of the Registrable Securities 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 Financial Industry Regulatory Authority (“FINRA”); provided that you and each such holder of the Registrable Securities agree not to disclose such information without the prior consent of the CompanyNASD. 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 you and any other holder(s) of the Registrable Securities such Holder or underwriter shall reasonably request.
(viiij) If required by the underwriters Nothing contained 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 Agreement shall be satisfactory in form and substance construed as requiring the Holder(s) to exercise their Warrants prior to the Company, you and each other holder initial filing 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, you and the other holder(s) 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 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 you and the other holder(s) of the Registrable Securities. You and the other holder(s) 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 you and the other holder(s) of the Registrable Securities and their intended methods of distribution.
(ix) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to you and each holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to you, such holder(s) or underwriter, of (i) an opinion of counsel to the Company, dated as of 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.
(x) The Company shall promptly notify you 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 you and each holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of you or any such holder(s), the Company shall promptly prepare and furnish to you or such holder(s) 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.
(xi) For purposes of this Agreement, the term “majority” in reference to you and the other holder(s) of a Warrant or the shares underlying an unexercised Warrant, shall mean in excess of fifty percent (50%) of the shares underlying the then outstanding Warrant(s) 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 Acteffectiveness thereof.
Appears in 1 contract
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7(a) hereof, the The Company covenants and agrees as follows:
(ia) The In connection with any registration under Section 7.4 hereof, the Company shall use its best efforts to file a registration statement within ninety the Registration Statement as expeditiously as possible, but in no event later than thirty (9030) days of following receipt of any demand therefore in accordance with Section 7(atherefor (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 registration statement such Registration Statement declared effective at the earliest practicable time, possible time and shall furnish you and each holder desiring to sell the of Registrable Securities held by you or the other holder(s) as a result of any adjustment made pursuant to the provisions of Section 5 hereof, such number of prospectuses as shall reasonably be requested.
(iib) The Company shall pay all costs (excluding fees and expenses of counsel for you and any other holder(s) and any underwriting or selling commissions)costs, fees and expenses in connection with all registration statements Registration Statements filed pursuant to Section 7(aSections 7.3 and 7.4(a) hereof (excluding any underwriting discounts and commissions which may be incurred in connection with the sale of any Registrable Securities) including, without limitation, the Company’s 's legal and accounting fees, printing expenses, and blue sky fees and expenses. If expenses and fees and expenses of one counsel to the Company shall fail Holders of Registrable Securities (except for the fees and expenses of counsel for the Holders when a registration is effected pursuant to comply with the provisions terms of Section 7(d7.4(c), the Company shall, in addition to any other equitable or other relief available to you and any other holder(s), be liable for any or all actual damages (which may include damages due to a loss of profit).
(iiic) The Company will take all reasonably necessary action which may be required in qualifying or registering the Registrable Securities included in a registration statement Registration Statement for offering and sale under the securities or blue sky laws of such states as are reasonably requested by you and any other holder(s)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.
(ivd) The Company shall indemnify you and any other holder(s) holder of the Registrable Securities to be sold pursuant to any registration statement Registration Statement and any underwriter or person deemed to be an underwriter under the Act and each person, if any, who controls you such holder or any other holder(s) 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 “1934 "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 1934 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 you the Underwriters contained in Section 5 of the Placement Underwriting Agreement to be entered into by and between you and the Company (the “Placement Agreement”) and to provide for just and equitable contribution as set forth in Section 6 of the Placement Underwriting Agreement.
(ve) You and any other holder(s) Any holder of the Registrable Securities to be sold pursuant to a registration statementRegistration Statement, and their 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 1934 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 1934 Exchange Act or otherwise, arising from information furnished in writing by or on behalf of such holder(s)holder, or their 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 contained in Section 5 of the Placement Underwriting Agreement pursuant to which you have the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in Section 6 of the Placement Underwriting Agreement.
(vif) Nothing contained in this Agreement shall be construed as requiring you or any other holder(s) Holder to exercise any portion of their Warrant its Warrants prior to the initial filing of any registration statement Registration Statement or the effectiveness thereof.
(viig) The Company shall deliver promptly to you and any other holder(s) each holder 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 Registration Statement and permit you and the other holder(s) each holder of the Registrable Securities and 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 Financial Industry Regulatory Authority National Association of Securities Dealers, Inc. (“FINRA”"NASD"); provided that you and each such holder of the Registrable Securities agree 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 you and any other holder(s) such holder of the Registrable Securities or underwriter shall reasonably request.
(viiih) If required by the underwriters underwriter in connection with an underwritten offering which includes Registrable Securities pursuant to this Section Article 7, the Company shall enter into an underwriting agreement with one or more underwriters selected for such underwriting. Such underwriting , such agreement shall be satisfactory in form and substance to the Company, you 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 underwritersunderwriter, you and the other holder(s) 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 you and the other holder(s) such holders of the Registrable Securities. You and the other holder(s) Such 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 you and the other holder(s) such holders of the Registrable Securities and their intended methods of distribution.
(ixi) 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 7.4 hereof, or file any Registration Statement subsequent to the receipt of any notice pursuant to Section 7.4 hereof and until one hundred and eighty (180) days after the effectiveness of a Registration Statement filed pursuant to Section 7.4 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; provided, however, that in the event of an underwritten public offering, the Company shall have the right to permit the inclusion of such other securities if the managing underwriter of such offering advises the Company or the Holders in writing that, in its opinion, the inclusion of such securities other than the Warrant Shares in such registration statement will not adversely affect the distribution or the offering price of such Warrant Shares.
(j) In connection with any registration statement Registration Statement filed pursuant to Section 7 7.3 hereof, the Company shall furnish, or cause furnish to be furnished, to you and each holder Holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to you, such holder(s) Holder or underwriter, of (i) an opinion of counsel to the Company, dated as of 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 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 '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 's counsel and in accountants’ ' letters delivered to underwriters in underwritten public offerings of securities.
(xk) The Company shall promptly notify you and each holder Holder of the Registrable Securities Warrants and/or Warrants Shares 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 '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 you and each holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At at the request of you or any such holder(s), the Company shall Holder promptly prepare and furnish to you or such holder(s) 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.
(xi) For purposes of this Agreement, the term “majority” in reference to you and the other holder(s) of a Warrant or the shares underlying an unexercised Warrant, shall mean in excess of fifty percent (50%) of the shares underlying the then outstanding Warrant(s) 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: Warrant Agreement (Integcom Corp)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7(a) Sections 4.1 or 4.2 hereof, the Company covenants and agrees as follows:
(ia) The Company shall use its best efforts to file a registration statement within ninety (90) days of receipt of any demand therefore in accordance with Section 7(a), shall use its best efforts to have cause any registration statement to be declared effective at the earliest practicable possible time, and shall furnish you and each holder desiring to sell the Registrable Securities held by you or the other holder(s) as a result of any adjustment made pursuant to the provisions of Section 5 hereof, Consultant such number of prospectuses as shall reasonably be requested.
(iib) The Company shall pay all costs (excluding transfer taxes, if any, fees and expenses of counsel for you and any other holder(s) Consultant's counsel, if any, and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Section 7(a) Sections 4.1 or 4.2 hereof including, without limitation, the Company’s '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(d), the Company shall, in addition to any other equitable or other relief available to you and any other holder(s), be liable for any or all actual damages (which may include damages due to a loss of profit).
(iiic) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Common Stock included in a the registration statement for offering and sale under the securities or blue sky laws of such states as are reasonably requested by you and any other holder(s)the Consultant, 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.
(ivd) The Company shall indemnify you and any other holder(s) of the Registrable Securities to be sold pursuant to any registration statement Consultant and each person, if any, who controls you or any other holder(s) the Consultant within the meaning of Section 15 of the Securities Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the “1934 "Exchange Act”"), 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 Securities Act, the 1934 Exchange Act or any other statute, common law or otherwise, arising from out of or based upon any untrue statement or alleged untrue statement of a material fact contained (x) in such registration statement (as from time to time amended and supplemented), (y) in any post-effective amendment or amendments or (z) in any application or other document or written communication (in this Section 4 collectively called an "application") executed by the Company or based upon written information furnished by the Company filed in any jurisdiction in order to qualify the Common Stock under the securities laws thereof or filed with the Securities and Exchange Commission, any state securities commission or agency, the NASD, NASDAQ or any securities exchange or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements contained therein not misleading, unless such statement or omission was made in reliance upon and in conformity with written information furnished to the same extent and with Company by the same effect Consultant expressly for use in such registration statement, any amendment or supplement thereto or any application, as the provisions case may be. If any action is brought against the Consultant or any controlling person of the Consultant in respect of which indemnity may be sought against the Company pursuant to which this Section 4, the Consultant or such controlling person shall within thirty (30) days after the receipt thereby of a summons or complaint notify the Company has agreed to indemnify you in writing of the Placement Agreement to be entered into by and between you institution of such action and the Company shall assume the defense of such action, including the employment and payment of reasonable fees and expenses of counsel (reasonably satisfactory to the “Placement Agreement”Consultant or such controlling person) but the failure to give such notice shall not affect such indemnified person's right to indemnification hereunder except to the extent that the Company's defense of such action was materially adversely affected thereby. The Consultant or such controlling person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Consultant or such controlling person unless (i) the employment of such counsel shall have been authorized in writing by the Company in connection with the defense of such action, (ii) the Company shall not have employed counsel to provide have charge of the defense of such action or (iii) such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the fees and expenses of not more than one additional firm of attorneys for just and equitable contribution the Consultant and/or such controlling person shall be borne by the Company. Except as set forth expressly provided above, in the Placement Agreementevent that the Company shall not previously have assumed the defense of any such action or claim, the Company shall not thereafter be liable to the Consultant or such controlling person in investigating, preparing or defending any such action or claim. The Company agrees promptly to notify the Consultant of the commencement of any litigation or proceedings against the Company or any of its officers, directors or controlling persons in connection with the offering and sale of the Common Stock or in connection with such registration statement.
(ve) You and any other holder(s) The Consultant of the Registrable Securities Common Stock to be sold pursuant to a registration statement, and their 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 Securities Act or Section 20(a) of the 1934 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 1934 Exchange Act or otherwise, arising from written information furnished by or on behalf of such holder(s)the Consultant, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in the Placement Agreement pursuant to which you have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in the Placement Agreementstatement.
(vi) Nothing contained in this Agreement shall be construed as requiring you or any other holder(s) to exercise any portion of their Warrant prior to the initial filing of any registration statement or the effectiveness thereof.
(viif) The Company shall deliver promptly to you and any other holder(s) 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 furnish to the registration statement and permit you and the other holder(s) of the Registrable Securities 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 Financial Industry Regulatory Authority (“FINRA”); provided that you and each such holder of the Registrable Securities agree 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 you and any other holder(s) of the Registrable Securities shall reasonably request.
(viii) 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, you 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, you and the other holder(s) 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 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 you and the other holder(s) of the Registrable Securities. You and the other holder(s) 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 you and the other holder(s) of the Registrable Securities and their intended methods of distribution.
(ix) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to you and each holder participating in any underwritten offering Consultant and to each underwriter, if any, a signed counterpart, addressed to you, such holder(s) the Consultant or underwriter, if any, of (i) an opinion of counsel to the Company, dated as of 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, " 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 auditors who have issued a report on the Company’s '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 's counsel and in accountants’ ' letters delivered to underwriters in underwritten public offerings of securities.
(xg) The Notwithstanding the foregoing, if the Company shall promptly notify you and each holder commences an initial public offering of the Registrable Securities covered by such registration statementCommon Stock at a price less than $10.00 per share, 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 you and each holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of you or any such holder(s), the Company shall promptly prepare and furnish issue to you or such holder(s) and each underwriter, if any, a reasonable the Consultant the number of copies additional shares of a supplement Common Stock equal to or an amendment $1,500,000, (ii) divided by the price per share of such prospectus as may be necessary so thatoffering, as thereafter delivered to (iii) less the purchasers number 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 shares issued in the light of the circumstances under which they were madeSection 4(g).
(xi) For purposes of this Agreement, the term “majority” in reference to you and the other holder(s) of a Warrant or the shares underlying an unexercised Warrant, shall mean in excess of fifty percent (50%) of the shares underlying the then outstanding Warrant(s) 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
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7(a) 4.1 hereof, the ------- Company covenants and agrees as follows:
(ia) The Company shall use its best efforts to file a registration statement within ninety (90) days of receipt of any demand therefore in accordance with Section 7(a), shall use its best efforts to have any registration statement declared effective at the earliest practicable time, and shall furnish you and each holder Holder desiring to sell the Registrable Securities held by you or the other holder(s) as a result of any adjustment made pursuant to the provisions of Section 5 hereof, its securities such number of prospectuses as shall reasonably be requested.
(iib) The Company shall pay all costs (excluding fees and expenses of Holder(s)' counsel for you and any other holder(s) and any underwriting or selling commissionscommissions or other charges of any broker-dealer acting on behalf of Holder(s)), fees and expenses in connection with all registration statements filed pursuant to Section 7(a) 4.1 hereof ------- including, without limitation, the Company’s '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(d), the Company shall, in addition to any other equitable or other relief available to you and any other holder(s), be liable for any or all actual damages (which may include damages due to a loss of profit).
(iiic) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities securities included in a the registration statement for offering and sale resale under the securities or blue sky laws of such states as are reasonably requested by you and any other holder(sthe Placement Agent or 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.
(ivd) The Company shall indemnify you and any other holder(sthe Holder(s) of the Registrable Securities securities to be sold pursuant to any registration statement and each person, if any, who controls you or any other holder(s) such 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 “1934 "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 1934 Exchange Act or any other statute, common law or otherwise, arising from out of or based upon any untrue statement or alleged untrue statement of a material fact contained (x) in such registration statement (as from time to time amended and supplemented); (y) in any post-effective amendment or amendments; or (z) in any application or other document or written communication (in this Section 4 collectively called an "application") executed by the Company ------- or based upon written information furnished by the Company filed in any jurisdiction in order to qualify the securities under the securities laws thereof or filed with the Commission, any state securities commission or agency, the American Stock Exchange, the National Association of Securities Dealers, Inc., The Nasdaq Stock Market or any securities exchange, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements contained therein not misleading, unless such statement or omission was made in reliance upon and in conformity with written information furnished to the same extent and with Company by the same effect undersigned or the Placement Agent on behalf of the Holders expressly for use in such registration statement, any amendment or supplement thereto or any application, as the provisions case may be. If any action is brought against the undersigned or any controlling person of the undersigned in respect of which indemnity may be sought against the Company pursuant to which this Section 4, the undersigned or such controlling person shall within thirty (30) ------- days after the receipt thereby of a summons or complaint notify the Company has agreed to indemnify you in writing of the Placement Agreement to be entered into by and between you institution of such action and the Company shall assume the defense of such action, including the employment and payment of reasonable fees and expenses of counsel (which counsel shall be reasonably satisfactory to the “Placement Agreement”) undersigned or such controlling person), but the failure to give such notice shall not affect such indemnified person's right to indemnification hereunder except to the extent that the Company's defense of such action was materially adversely affected thereby. The undersigned or such controlling person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the undersigned or such controlling person unless the employment of such counsel shall have been authorized in writing by the Company in connection with the defense of such action, the Company shall not have employed counsel to provide have charge of the defense of such action or such indemnified party or parties shall have reasonably concluded that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events the fees and expenses of not more than one additional firm of attorneys for just and equitable contribution the undersigned and/or such controlling person shall be borne by the Company. Except as set forth expressly provided in the Placement Agreementprevious sentence, in the event that the Company shall not previously have assumed the defense of any such action or claim, the Company shall not thereafter be liable to the undersigned or such controlling person in investigating, preparing or defending any such action or claim. The Company agrees promptly to notify the undersigned of the commencement of any litigation or proceedings against the Company or any of its officers, directors or controlling persons in connection with the offering and sale of the securities or in connection with such registration statement.
(ve) You and any other holder(sThe Holder(s) of the Registrable Securities securities to be sold pursuant to a registration statement, and their 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 1934 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 1934 Exchange Act or otherwise, arising from written information furnished by or on behalf of such holder(s)Holders or the Placement Agent on behalf of the Holders, or their successors or assigns, for specific inclusion in such registration statement statement. 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 ------- 4.2(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 a direct result of the Company or such person's gross negligence or willful misfeasance will be promptly repaid to the same extent and with the same effect as the provisions contained in the Placement Agreement pursuant to which you have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in the Placement AgreementHolder(s).
(vif) Nothing contained in this Agreement shall be construed as requiring you or any other holder(s) to exercise any portion of their Warrant prior to the initial filing of any registration statement or the effectiveness thereof.
(vii) The Company shall deliver promptly to you and any other holder(s) of the Registrable Securities participating in If the offering copies of all correspondence between the Commission described herein is an underwritten public offering 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 and permit you and the other holder(s) of the Registrable Securities 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 Financial Industry Regulatory Authority (“FINRA”); provided that you and each such holder of the Registrable Securities agree 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 you and any other holder(s) of the Registrable Securities shall reasonably request.
(viii) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7underwriter so requests, 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 furnish to the Company, you 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, you and the other holder(s) 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 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 you and the other holder(s) of the Registrable Securities. You and the other holder(s) 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 you and the other holder(s) of the Registrable Securities and their intended methods of distribution.
(ix) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to you and each holder Holder participating in any underwritten the offering and to each underwriter, if any, and the Placement Agent, a signed counterpart, addressed to you, such holder(s) Holder or underwriter, if any, and the Placement Agent, of (i) an opinion of counsel to the Company, dated as of 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), agreement signed by the independent public accountants who have issued a report on the Company’s '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 's counsel and in accountants’ ' letters delivered to underwriters in underwritten public offerings of securities.
(xg) The Company Nothing contained in this Agreement shall promptly notify you and each holder of be construed as requiring the Registrable Securities covered by such registration statement, at Holder(s) to convert any time when a prospectus relating thereto is required securities for Common Stock prior to be delivered under the Act, upon the Company’s discovery that, or upon the happening initial filing 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 you and each holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of you or any such holder(s), the Company shall promptly prepare and furnish to you or such holder(s) 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.
(xi) For purposes of this Agreement, the term “majority” in reference to you and the other holder(s) of a Warrant or the shares underlying an unexercised Warrant, shall mean in excess of fifty percent (50%) of the shares underlying the then outstanding Warrant(s) 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 Acteffectiveness thereof.
Appears in 1 contract
Samples: Subscription Agreement (Boston Life Sciences Inc /De)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7(a) 7.2 or 7.3 hereof, the Company covenants and agrees as follows:
(ia) The In connection with any registration under Section 7.3 hereof, the Company shall use its best efforts to file a registration statement within ninety as expeditiously as possible, but in any event no later than sixty (9060) days of following receipt of any demand therefore in accordance with Section 7(a)therefor, shall use its best efforts to have any registration statement declared effective at the earliest practicable possible time, and shall furnish you and each holder desiring to sell the Holder of Registrable Securities held by you or the other holder(s) as a result of any adjustment made pursuant to the provisions of Section 5 hereof, such number of prospectuses as shall reasonably be requested; provided, however, that the obligations under this Section 7.4(a) are contingent upon the Holders of the Registrable Securities otherwise complying with their obligations under this Agreement.
(iib) The Company shall pay all costs (excluding fees and expenses of Holder(s) counsel for you and any other holder(s) and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Section 7(aSections 7.2 and 7.3(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(d), the Company shall, in addition to any other equitable or other relief available to you and any other holder(s), be liable for any or all actual damages (which may include damages due to a loss of profit).
(iiic) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities included in a registration statement statement, for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by you and any other holder(sthe 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.
(ivd) The Company shall indemnify you and any other holder(s) holders of the Registrable Securities to be sold pursuant to any registration statement and each person, if any, who controls you or any other holder(s) such holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the “1934 "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 1934 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 you in the Placement Agreement to be entered into by and between you and the Company (the “Placement Agreement”) and to provide for just and equitable contribution as set forth Agent contained in Section 13 of the Placement Agency Agreement.
(ve) You and any other holder(s) Any Holder of the Registrable Securities to be sold pursuant to a registration statement, and their 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 1934 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 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such holder(s)holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in Paragraph 13 of the Placement Agency Agreement pursuant to which you have the Placement Agent has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in the Placement AgreementCompany.
(vif) Nothing contained in this Agreement shall be construed as requiring you or any other holder(s) holder to exercise any portion of their Warrant its Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(viig) 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 as soon as practicable, but in any event not later than 45 days after the end of the 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 security holders, in the manner specified in Rule 158(b) of the Rules and Regulations, and to the Placement Agent, 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.
(j) The Company shall deliver promptly to you and any other holder(s) of the Registrable Securities 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 and permit you each Holder and the other holder(s) of the Registrable Securities 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 Financial Industry Regulatory Authority National Association of Securities Dealers, Inc. (“FINRA”"NASD"); provided that you and each such holder of the Registrable Securities agree 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 you and any other holder(s) of the Registrable Securities such Holder shall reasonably request.
(viiik) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the The Company shall enter into an underwriting agreement with one or more the managing underwriters selected for such underwriting by Holders holding a Majority of the Warrant Securities requested to be included in such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, you each Holder and each other holder of the Registrable Securitiessuch 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 underwritersmanaging underwriter. If required by the underwriters, you and the other holder(s) of the Registrable Securities The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Warrant Securities and may, at their option, require that any or all representations the representations, warranties and warranties covenants of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, shall also be made to and for the benefit of you and the other holder(s) of the Registrable Securitiessuch Holders. You and the other holder(s) of the Registrable 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 you and the other holder(s) of the Registrable Securities such Holders and their intended methods of distribution.
(ix) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to you and each holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to you, such holder(s) or underwriter, of (i) an opinion of counsel to the Company, dated as of 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.
(x) The Company shall promptly notify you 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 you and each holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of you or any such holder(s), the Company shall promptly prepare and furnish to you or such holder(s) 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.
(xi1) For purposes of this Agreement, the term “majority” "Majority" in reference to you and the other holder(s) Holders of a Warrants or Warrant or the shares underlying an unexercised WarrantSecurities, shall mean in excess of fifty percent (50%) of the shares underlying the then outstanding Warrant(sWarrants or Warrant Securities that (i) 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 (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: Placement Agent's Unit Purchase Warrant Agreement (Nuwave Technologies Inc)
Covenants of the Company With Respect to Registration. In connection with any the registration under Section 7(a) 7.1 hereof, the Company covenants and agrees as follows:
(ia) The Company shall use its best efforts to file a registration statement the Supplemental Registration Statement within ninety forty-five (9045) days of receipt of any demand therefore in accordance with Section 7(a)the effective date hereof, shall use its best efforts to have any such registration statement declared effective at within ninety (90) days of the earliest practicable timedate hereof, and shall furnish you and each holder Holder desiring to sell the Registrable Securities held by you or the other holder(s) as a result of any adjustment made pursuant to the provisions of Section 5 hereof, Common Stock such number of prospectuses as shall reasonably be requested, and shall maintain the effectiveness of the Initial Registration Statement and the Supplemental Registration Statement until the earlier of three (3) years from its effective date or the date upon which all shares registered thereunder have been sold.
(iib) The Company shall pay all costs (excluding fees and expenses of Holder(s)' counsel for you and any other holder(s) and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Section 7(a) 7.1 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(d), the Company shall, in addition to any other equitable or other relief available to you and any other holder(s), be liable for any or all actual damages (which may include damages due to a loss of profit).
(iiic) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Common Stock included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by you and any other holder(sthe 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.
(ivd) The Company shall indemnify you and any other holder(sthe Holder(s) of the Registrable Warrant Securities to be sold pursuant to any registration statement and each person, if any, who controls you or any other holder(s) such Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the “1934 "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 1934 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 you in the Placement Agreement to be entered into by and between you and the Company (the “Placement Agreement”) and to provide for just and equitable contribution as set forth in the Placement Agreementstatement.
(ve) You and any other holder(sThe Holder(s) of the Registrable Securities Common Stock to be sold pursuant to a the registration statementstatements, and their 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 1934 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 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such holder(s)Holders, or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in the Placement Agreement pursuant to which you have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in the Placement Agreementstatement.
(vif) Nothing contained in this Agreement shall be construed as requiring you or any other holder(sthe Holder(s) to exercise any portion of their Warrant Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(viig) The Company shall deliver promptly be permitted to you and any include Common Stock of other holder(s) 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 and permit you and the other holder(s) of the Registrable Securities 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 Financial Industry Regulatory Authority (“FINRA”); provided that you and each such holder of the Registrable Securities agree 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 shareholders of the Company with its officers and independent auditors, all to such reasonable extent and at such reasonable times and as often as you and any other holder(s) of in the Registrable Securities shall reasonably request.
(viii) 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, you 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, you and the other holder(s) 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 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 you and the other holder(s) of the Registrable Securities. You and the other holder(s) 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 you and the other holder(s) of the Registrable Securities and their intended methods of distribution.
(ix) In connection with any registration statement statements filed pursuant to Section 7 7.1 hereof, the Company shall furnish, or cause to be furnished, to you and each holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to you, such holder(s) or underwriter, of (i) an opinion of counsel to the Company, dated as of 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.
(x) The Company shall promptly notify you 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 you and each holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of you or any such holder(s), the Company shall promptly prepare and furnish to you or such holder(s) 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.
(xi) For purposes of this Agreement, the term “majority” in reference to you and the other holder(s) of a Warrant or the shares underlying an unexercised Warrant, shall mean in excess of fifty percent (50%) of the shares underlying the then outstanding Warrant(s) 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: Registration and Warrant Agreement (International Isotopes Inc)
Covenants of the Company With Respect to Registration. In ----------------------------------------------------- connection with any registration under Section 7(a) Sections 9.2 or 9.3 hereof, the Company -------- covenants and agrees as follows:
(ia) The Company shall use its best efforts to file a registration statement within ninety (90) days of receipt of any demand therefore in accordance with Section 7(a)therefor, shall use its best efforts and to have any registration statement statements declared effective at the earliest practicable possible time, and shall furnish you and each holder Holder desiring to sell the Registrable Securities held by you or the other holder(s) as a result of any adjustment made pursuant to the provisions of Section 5 hereof, Warrant Shares such number of prospectuses as shall reasonably be requested. The Company shall keep its registration statement for its initial Public Offering effective for so long as the Underwriter may reasonably request; provided however, this obligation of the Company shall terminate upon the earlier of the expiration of the Warrants or until such Warrants are fully exercised.
(iib) The Company shall pay all costs (excluding fees and expenses of counsel for you and any other holder(s) and any underwriting or selling commissions)costs, fees and expenses in connection with all registration statements filed pursuant to Section 7(aSections 9.2 and -------- 9.3
(a) hereof including, without limitation, the Company’s 's legal and accounting fees, printing expenses, and blue sky fees and expenses. If The Holder(s) will pay all costs, fees and expenses (including those of the Company shall fail to comply Company) in connection with the provisions of registration statement filed pursuant to Section 7(d9.3(c), the Company shall, in addition to any other equitable or other relief available to you and any other holder(s), be liable for any or all actual damages (which may include damages due to a loss of profit).. -------
(iiic) 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 a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by you and any other holder(sthe 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.
(ivd) The Company shall indemnify you and any other holder(sthe Holder(s) of the Registrable Securities Warrant Shares to be sold pursuant to any registration statement and each person, if any, who controls you or any other holder(s) such Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the “1934 "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 1934 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 you each of the Underwriters contained in Section 7 of the Placement Agreement to be entered into by and between you and the Company (the “Placement Agreement”) and to provide for just and equitable contribution as set forth in the Placement Underwriting Agreement.
(ve) You and any other holder(sThe Holder(s) of the Registrable Securities Warrant Shares to be sold pursuant to a registration statement, and their 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 1934 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 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such holder(s)Holders, or their 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 7 of the Placement Underwriting ------- Agreement pursuant to which you the Underwriters have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in the Placement AgreementCompany.
(vif) Nothing contained in this Agreement shall be construed as requiring you or any other holder(sthe Holder(s) to exercise any portion of their Underwriter's Warrant prior to the initial filing of any registration statement or the effectiveness thereof.
(viig) The Company shall deliver promptly not permit the inclusion of any securities other than the Warrant Shares to you and any other holder(s) of the Registrable Securities participating be included 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 and permit you and the other holder(s) of the Registrable Securities 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 Financial Industry Regulatory Authority (“FINRA”); provided that you and each such holder of the Registrable Securities agree 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 you and any other holder(s) of the Registrable Securities shall reasonably request.
(viii) 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, you 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, you and the other holder(s) 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 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 you and the other holder(s) of the Registrable Securities. You and the other holder(s) 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 you and the other holder(s) of the Registrable Securities and their intended methods of distribution.
(ix) In connection with any registration statement filed pursuant to Section 7 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 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) The Company shall furnish, or cause furnish to be furnished, to you and each holder Holder participating in any underwritten the offering and to each underwriter, if any, a signed counterpart, addressed to you, such holder(s) Holder or underwriter, of (i) an opinion of counsel to the Company, dated as of 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, " 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 '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 's counsel and in accountants’ ' letters delivered to underwriters in underwritten public offerings of securities.
(xi) The Company shall promptly notify you and each holder as soon as practicable after the effective date of the Registrable Securities covered by such registration statement, at and in any time when a prospectus relating thereto is required event within fifteen (15) months thereafter, make "generally available to be delivered its security holders" (within the meaning of Rule 158 under the Act, upon ) an earnings statement (which need not be audited) complying with Section 11(a) of the Company’s discovery that, or upon Act and covering a period of at ------- least twelve (12) consecutive months beginning after the happening effective date of any event as the registration statement.
(j) The Company shall enter into an underwriting agreement with the managing underwriters selected for such underwriting by Holders holding a result Majority of which, the prospectus Warrant Shares requested to be included in such registration statementunderwriting, 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 then are customarily contained in effectagreements 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, includes an untrue statement at their option, require that any or all the representations, warranties and covenants of a material fact the Company to or omits for the benefit of such underwriters shall also be made to state any material fact and for the benefit of such Holders. Such Holders shall not be required to be stated therein make any representations or necessary warranties to make the statements therein not misleading in the light of the circumstances under which they were made, and upon receipt of such notice you and each holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of you or any such holder(s), agreements with the Company shall promptly prepare or the underwriters except as they may relate to such Holders and furnish to you or such holder(s) and each underwriter, if any, a reasonable number their intended methods 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 madedistribution.
(xik) For purposes of this Agreement, the term “majority” "Majority" in reference to you and the other holder(s) of a Underwriter's Warrants or Warrant or the shares underlying an unexercised WarrantShares, shall mean in excess of fifty percent (50%) of the shares underlying the then outstanding Warrant(sUnderwriter's Warrants or Warrant Shares that (i) 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 (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. In connection with any registration under Section 7(a) hereof, the The Company covenants and agrees as follows:
(i) The Company shall use its best efforts to file a registration statement within ninety (90) days of receipt of any demand therefore in accordance with Section 7(a), shall use its best efforts to have any registration statement declared effective at the earliest practicable time, and shall furnish you and each holder desiring to sell the Registrable Securities held by you or the other holder(s) as a result of any adjustment made pursuant to the provisions of Section 5 hereof, such number of prospectuses as shall reasonably be requested.
(iia) The Company shall pay all costs costs, fees and expenses (excluding other than underwriting fees, discounts and nonaccountable expense allowance applicable to the Registrable Securities and fees and expenses of counsel for you and any other holder(sretained by the Holder) and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Section 7(a) hereof Registration Statements 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 you and any other holder(s), be liable for any or all actual damages (which may include damages due to a loss of profit).
(iiib) The Company will use its reasonable best efforts to take all necessary action which may be required in qualifying or registering the Registrable Securities included in a registration statement the Registration Statement for offering and sale under the securities or blue sky laws of such states as are reasonably requested by you and any other 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 jurisdictionHolder.
(ivc) The To the fullest extent permitted by law, the Company shall will indemnify you and any other holder(s) of hold the Registrable Securities to be sold pursuant to any registration statement and each person, if any, who controls you or any other holder(s) within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the “1934 Act”), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending Holder harmless against any claim whatsoever) losses, claims, damages, or liabilities to which any of them it may become subject under the Securities Act, the 1934 Exchange Act or otherwiseother federal or state law, arising from insofar as such registration statement to losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any of the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify you in the Placement Agreement to be entered into by and between you and the Company following statements, omissions or violations (the collectively a “Placement AgreementViolation”) and to provide for just and equitable contribution as set forth in the Placement Agreement.
(v) You and any other holder(s) of the Registrable Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify by 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 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 1934 Act or otherwise, arising from information furnished by or on behalf of such holder(s), or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in the Placement Agreement pursuant to which you have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in the Placement Agreement.
(vi) Nothing contained in this Agreement shall be construed as requiring you or any other holder(s) to exercise any portion of their Warrant prior to the initial filing of any registration statement or the effectiveness thereof.
(vii) The Company shall deliver promptly to you and any other holder(s) 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 and permit you and the other holder(s) of the Registrable Securities 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 Financial Industry Regulatory Authority (“FINRA”); provided that you and each such holder of the Registrable Securities agree 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 you and any other holder(s) of the Registrable Securities shall reasonably request.
(viii) 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, you 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, you and the other holder(s) 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 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 you and the other holder(s) of the Registrable Securities. You and the other holder(s) 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 you and the other holder(s) of the Registrable Securities and their intended methods of distribution.
(ix) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to you and each holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to you, such holder(s) or underwriter, of : (i) an opinion of counsel to the Company, dated as of the effective date of such registration any untrue 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.
(x) The Company shall promptly notify you 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 alleged untrue statement of a material fact contained in the Registration Statement, including any preliminary prospectus or omits final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state any therein a material fact required to be stated therein therein, or necessary to make the statements therein not misleading in the light of the circumstances under which they were mademisleading, and upon receipt of such notice you and each holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of you or any such holder(s), the Company shall promptly prepare and furnish to you or such holder(s) 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.
(xi) For purposes of this Agreement, the term “majority” in reference to you and the other holder(s) of a Common Stock Warrant or the shares underlying an unexercised Warrant, shall mean in excess of fifty percent (50%) of the shares underlying the then outstanding Warrant(s) 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.6
Appears in 1 contract
Samples: License Agreement (Histogenics Corp)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7(a) 10.1 or 10.2 hereof, the Company covenants and agrees as follows:
(ia) The Company shall use its best reasonable efforts to file a registration statement demanded under Section 10.2(a) hereof within ninety fifty (9050) days of receipt of any demand therefore in accordance with Section 7(a)therefore, shall use its best efforts to have any registration statement declared effective at the earliest practicable time, and shall furnish you and each holder desiring to sell the Registrable Securities held by you or the other holder(s) as a result of any adjustment made pursuant to the provisions of Section 5 hereof, such number of prospectuses as shall reasonably be requested.use
(iib) The Company shall pay all costs (excluding fees and expenses of Holder(s)' counsel for you and any other holder(s) and any underwriting or selling commissionscommissions which shall be paid by the Holders of the Warrant Agreements), fees and expenses in connection with all registration statements filed pursuant to Section 7(a10.1 and 10.2(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(d), the Company shall, in addition to any other equitable or other relief available to you and any other holder(s), be liable for any or all actual damages (which may include damages due to a loss of profit).
(iiic) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Warrant Shares included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by you and any other holder(sthe 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.
(iv) The Company shall indemnify you and any other holder(s) of the Registrable Securities to be sold pursuant to any registration statement and each person, if any, who controls you or any other holder(s) within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the “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 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 you in the Placement Agreement to be entered into by and between you and the Company (the “Placement Agreement”) and to provide for just and equitable contribution as set forth in the Placement Agreement.
(v) You and any other holder(s) of the Registrable Securities to be sold pursuant to a registration statement, and their 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 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 1934 Act or otherwise, arising from information furnished by or on behalf of such holder(s), or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in the Placement Agreement pursuant to which you have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in the Placement Agreement.
(vid) Nothing contained in this Agreement shall be construed as requiring you or any other holder(s) the Holders of the Warrant Agreements to exercise any portion of their Warrant Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(viie) The Company shall deliver promptly to you and any other holder(s) each of the Registrable Securities Holders of the Warrant Agreements 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 and permit you and the other holder(s) of the Registrable Securities 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 Financial Industry Regulatory Authority (“FINRA”); provided that you and each such holder of the Registrable Securities agree not to disclose such information without the prior consent of the Companystatement. 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 you and any other holder(s) of the Registrable Securities shall reasonably request.
(viii) 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, you 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, you and the other holder(s) 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 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 you and the other holder(s) of the Registrable Securities. You and the other holder(s) 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 you and the other holder(s) of the Registrable Securities and their intended methods of distribution.
(ix) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to you and each holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to you, such holder(s) or underwriter, of (i) an opinion of counsel to the Company, dated as of 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.
(x) The Company shall promptly notify you 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 you and each holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of you or any such holder(s), the Company shall promptly prepare and furnish to you or such holder(s) 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.
(xi) For purposes of this Agreement, the term “majority” in reference to you and the other holder(s) of a Warrant or the shares underlying an unexercised Warrant, shall mean in excess of fifty percent (50%) of the shares underlying the then outstanding Warrant(s) 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.10.4
Appears in 1 contract
Samples: Warrant Agreement (Perma Fix Environmental Services Inc)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7(a) 11 hereof, the Company covenants and agrees as follows:
(ia) The Company shall use its best efforts to file a registration statement within ninety (90) days of receipt of any demand therefore in accordance with Section 7(a), shall use its all reasonable best efforts to have any registration statement statements declared effective at the earliest practicable possible time, and shall furnish you and each holder desiring to sell the Registrable Securities held by you Warrant Shares eligible for Piggyback or the other holder(s) as a result of any adjustment made pursuant to the provisions of Section 5 hereof, Demand Registration such number of prospectuses as shall reasonably be requested.
(iib) The Company shall pay all costs (excluding fees and expenses of holder(s)’ counsel for you and any other holder(s) and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Section 7(a) 11 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 you and any other holder(s), be liable for any or all actual damages (which may include damages due to a loss of profit).
(iiic) The Company will take all necessary action which that may be required in qualifying or registering the Registrable Securities Warrant Shares included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by you and any other the 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.
(ivd) The Notwithstanding any other provision of this Agreement to the contrary, the Company shall indemnify you and any other holder(s) hold harmless the holders of the Registrable Securities Warrant Shares to be sold pursuant to any registration statement and statement, each person, if any, who controls you or any other holder(s) such holders within the meaning of Section 15 5 of the Act Act, or Section 20(a) of the Securities Exchange Act of 1934, as amended (the “1934 Exchange Act”), and such underwriter, within the meaning of the Act, who may purchase from or sell for the holders, any Warrant Shares, from and against any and all losslosses, claimclaims, damage, expense or liability damages and liabilities (including all expenses reasonably incurred in investigating, preparing or defending against any claim whatsoever) to which caused by any untrue statement of them may become subject a material fact contained in any registration statement filed by the Company under the Act, the 1934 Act or otherwise, arising from any post-effective amendment to such registration statements, or any prospectus included therein required to be filed or furnished by reason of Section 11 of this Agreement or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or alleged untrue statement or omission or alleged omission based upon information furnished or required to be furnished in writing to the same extent and with Company by the same effect as the provisions pursuant to which the Company has agreed to indemnify you in the Placement Agreement to be entered into by and between you and the Company (the “Placement Agreement”) and to provide for just and equitable contribution as set forth in the Placement Agreementholders or such underwriter.
(ve) You and any other The holder(s) of the Registrable Securities Warrant Shares to be sold pursuant to a registration statement, and their successors and assigns, and any such underwriter and other person 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 1934 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 1934 Exchange Act or otherwise, arising from caused by any untrue statement or alleged untrue statement of a material fact contained in any registration statement or any prospectus required to be filed or furnished by reason of Section 11 of this Agreement or caused by any omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, insofar as such losses, claims, damages or liabilities are caused by any untrue statement or alleged untrue statement or omission based upon information furnished in writing to the Company by the Warrant holders or such underwriter or other person expressly for use therein.
(f) With respect to any registration statements filed by the Company in connection with any underwritten public offering, the Company’s underwriter will retain the right to reduce or eliminate the number of shares proposed to be registered as it deems necessary. If a Demand Registration is an underwritten offering and the managing underwriters advise the Company in writing that in their opinion the number of securities requested to be included in such registration exceeds the number which can be sold in such offering without adversely affecting the marketability of the offering, the Company shall include in such registration only such number of Warrant Shares allocated pro rata amongst the holders thereof, based upon the number of Warrant Shares owned by each such holder. If a Piggyback Registration is an underwritten registration on behalf of such holder(s)the Company, or and the managing underwriters advise the Company in writing that in their successors or assigns, for specific inclusion opinion the number of securities requested to be included in such registration statement exceeds the number which can be sold in such offering without adversely affecting the marketability of the offering, the Company shall include in such registration, only as may be permitted in the reasonable business judgment of the managing underwriters for such registration:
(i) first, up to that number of securities the Company proposes to sell;
(ii) second, up to that number of registrable securities requested to be included in such registration by the holders of the Company’s Series A Exchangeable Convertible Preferred Stock and others with registration rights in existence prior to the same extent date hereof;
(iii) third, up to that number of Warrant Shares requested and with eligible to be included in such registration by the same effect as the provisions contained holder(s); and
(iv) fourth, up to that number of other securities requested to be included in the Placement Agreement pursuant to which you have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in the Placement Agreementsuch registration.
(vig) Nothing contained in this Agreement shall be construed as requiring you or any other the holder(s) to exercise any portion of their Warrant Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(viih) The Company shall deliver promptly furnish to you and any other holder(s) 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 and permit you and the other holder(s) of the Registrable Securities 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 Financial Industry Regulatory Authority (“FINRA”); provided that you and each such holder of the Registrable Securities agree 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 you and any other holder(s) of the Registrable Securities shall reasonably request.
(viii) 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, you 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, you and the other holder(s) 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 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 you and the other holder(s) of the Registrable Securities. You and the other holder(s) 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 you and the other holder(s) of the Registrable Securities and their intended methods of distribution.
(ix) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to you and each holder participating in any an underwritten public offering and to each underwriter, a signed counterpart, addressed to you, such holder(s) holder or underwriter, of (i) an opinion of counsel to the Company, dated as of 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, letter dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, and a letter dated the date of the closing under the underwriting agreement), 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.
(xi) The Company shall promptly notify you and each holder as soon as practicable after the effective date of the Registrable Securities covered 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.
(j) The Company shall make available for inspection by the holder(s) of Warrant Shares included in each Demand or Piggyback Registration Statement, or a representative thereof, any underwriter participating in the disposition pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by any such selling holder(s), underwriter, attorney, accountant or agent in connection with 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 you and each holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of you or any such holder(s), the Company shall promptly prepare and furnish to you or such holder(s) 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.
(xi) For purposes of this Agreement, the term “majority” in reference to you and the other holder(s) of a Warrant or the shares underlying an unexercised Warrant, shall mean in excess of fifty percent (50%) of the shares underlying the then outstanding Warrant(s) 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
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7(a) 7.2 or 7.3 hereof, the Company covenants and agrees as follows:
(ia) The Company shall use its best efforts to file a registration statement within ninety forty-five (9045) days of receipt of any demand therefore in accordance with pursuant to Section 7(a)7.3, and shall use its best efforts to have any such registration statement declared effective at the earliest practicable time. The Company will promptly notify each seller of such Registrable Securities and confirm such advice in writing, (i) when such registration statement becomes effective, (ii) when any post-effective amendment to such registration statement becomes effective and (iii) of any request by the SEC for any amendment or supplement to such registration statement or any prospectus relating thereto or for additional information. The Company shall furnish to each seller of such Registrable Securities such number of copies of such registration statement and of each such amendment and supplement thereto (in each case including each preliminary prospectus and summary prospectus) in conformity with the requirements of the Act, and shall furnish you and each holder desiring such other documents as such seller may reasonably request in order to sell facilitate the disposition of the Registrable Securities held by you or the other holder(s) as a result of any adjustment made pursuant to the provisions of Section 5 hereof, such number of prospectuses as shall reasonably be requestedseller.
(iib) The Company shall pay all costs (excluding transfer taxes, if any, and fees and expenses of Holder(s)' counsel for you and any other holder(s) and any underwriting the Holder's pro-rata portion of the selling discount or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Section 7(aSections 7.2 and 7.3(a) hereof including, without limitation, the Company’s '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(d7.3(a), the Company shall, in addition to any other equitable or other relief available to you and any other holder(sthe Holder(s), be liable for any or all actual special and consequential damages (which may include damages due to a loss of profit).
(iii) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as are reasonably requested by you and any other 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.
(iv) The Company shall indemnify you and any other holder(s) of the Registrable Securities to be sold pursuant to any registration statement and each person, if any, who controls you or any other holder(s) within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the “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 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 you in the Placement Agreement to be entered into by and between you and the Company (the “Placement Agreement”) and to provide for just and equitable contribution as set forth in the Placement Agreement.
(v) You and any other holder(s) of the Registrable Securities to be sold pursuant to a registration statement, and their 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 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 1934 Act or otherwise, arising from information furnished by or on behalf of such holder(s), or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in the Placement Agreement pursuant to which you have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in the Placement Agreement.
(vi) Nothing contained in this Agreement shall be construed as requiring you or any other holder(s) to exercise any portion of their Warrant prior to the initial filing of any registration statement or the effectiveness thereof.
(vii) The Company shall deliver promptly to you and any other holder(s) 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 and permit you and the other holder(s) of the Registrable Securities 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 Financial Industry Regulatory Authority (“FINRA”); provided that you and each such holder of the Registrable Securities agree 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 you and any other holder(s) of the Registrable Securities shall reasonably request.
(viii) If required sustained 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, you 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, you and the other holder(s) 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 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 you and the other holder(s) of the Registrable Securities. You and the other holder(s) 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 you and the other holder(s) of the Registrable Securities and their intended methods of distribution.
(ix) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to you and each holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to you, such holder(s) or underwriter, of (i) an opinion of counsel to the Company, dated as of 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 agreementHolder(s), 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.
(x) The Company shall promptly notify you 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 you and each holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of you or any such holder(s), the Company shall promptly prepare and furnish to you or such holder(s) 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.
(xi) For purposes of this Agreement, the term “majority” in reference to you and the other holder(s) of a Warrant or the shares underlying an unexercised Warrant, shall mean in excess of fifty percent (50%) of the shares underlying the then outstanding Warrant(s) 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: Representative's Unit Purchase Option or Warrant Agreement (General Credit Corp)
Covenants of the Company With Respect to Registration. In --------------------------------------------------------- connection with any registration under Section 7(a) 7.2 hereof, the Company covenants and agrees as follows:
(ia) The Company (i) shall use its best efforts to file a market the Securities included in any such registration statement within ninety and (90ii) days of receipt of any demand therefore in accordance with Section 7(a), shall use its best efforts to have any registration statement declared effective at the earliest practicable time, and shall furnish you and each holder desiring to sell the Registrable Securities held by you or the other holder(s) as a result of any adjustment made pursuant to the provisions of Section 5 hereof, Holder such number of prospectuses as shall reasonably be requested.
(iib) The Company shall pay all costs (excluding fees and expenses of counsel for you and any other holder(s) and any underwriting or selling commissionscommissions or other charges of any broker-dealer acting on behalf of Holder), fees and expenses in connection with all registration statements filed pursuant to Section 7(a) 7.2 hereof including, without limitation, the Company’s 's legal and accounting fees, printing expenses, and blue sky fees and expensesexpenses and expenses of counsel to the Holder. If the Company shall fail to comply with the provisions of Section 7(d7.3(a), the Company shall, in addition to any other equitable or other relief available to you and any other holder(s)the Holder, be liable for any or all actual incidental or special damages (which may include damages due to a loss sustained by the Holder requesting registration of profit)Securities.
(iiic) The Company will shall take all necessary action which may be required in qualifying or registering the Registrable Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by you and any other holder(s)the Holder, provided that the Company shall not be obligated to (i) execute or file any general consent to service of process or to process, (ii) qualify as a foreign corporation to do business under the laws of any such jurisdiction or (iii) subject itself to taxation in such jurisdiction.
(ivd) The Company shall indemnify you and any other holder(s) the Holder of the Registrable Securities to be sold pursuant to any registration statement and each person, if any, who controls you or any other holder(s) the Holder within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the “1934 "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 1934 Exchange Act or otherwise, arising from such registration statement to (excluding any loss, claim, damage, expense or liability arising from information furnished in writing by or on behalf of the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify you Holder, or its successors or assigns, for specific inclusion in the Placement Agreement to be entered into by and between you and the Company (the “Placement Agreement”) and to provide for just and equitable contribution as set forth in the Placement Agreementsuch registration statement).
(ve) You and any other holder(s) The Holder of the Registrable Securities to be sold pursuant to a registration statement, and their 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 1934 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 1934 Exchange Act or otherwise, arising solely from the inclusion in such registration statement of information furnished in writing by or on behalf of such holder(s)Holder, or their its successors or assigns, specifically for specific inclusion use in such registration statement to the same extent and with the same effect as the provisions contained in the Placement Agreement pursuant to which you have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in the Placement Agreementstatement.
(vif) Nothing contained in this Agreement shall be construed as requiring you or any other holder(s) the Holder to exercise any portion of their Warrant its Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(viig) In the case of an underwritten offering pursuant to Section 7.2, if the managing underwriter with respect to such offering requests in writing that the number of the Company's securities to be offered by selling security holders in the registration be reduced because, in the judgment of the managing underwriter, the proposed offering would be materially and adversely affected, then such securities shall be reduced by such amount as the managing underwriter may determine in writing so as to not materially and adversely affect the proposed offering, which reduced number of securities shall be included in the offering, selected as nearly as possible pro rata from among all selling security holders.
(h) The Company shall furnish to the Holder and to each underwriter, if any, a signed counterpart, addressed to the 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 to you the Holder, if it so requests, the correspondence and any other holder(s) of the Registrable Securities participating in the offering memoranda described below, copies of all correspondence between the Securities and Exchange Commission (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 and permit you the Holder and the other holder(s) of the Registrable Securities 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 Financial Industry Regulatory Authority (“FINRA”); provided that you and each such holder of the Registrable Securities agree not to disclose such information without the prior consent of the CompanyNASD. 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 you and any other holder(s) of the Registrable Securities Holder shall reasonably request.
(viiik) If required Holder, if, as and when its Securities are covered 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, you 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, you and the other holder(s) 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 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 you and the other holder(s) of the Registrable Securities. You and the other holder(s) 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 you and the other holder(s) of the Registrable Securities and their intended methods of distribution.
(ix) In connection with any a registration statement filed pursuant to Section 7 hereof, agrees if and to the extent requested by the managing underwriter, in the case of an underwritten sale of its Securities (to the extent timely notified in writing by the Company shall furnish, or cause to be furnished, to you and each holder participating in any underwritten offering and to each the managing underwriter, a signed counterpart, addressed to you, such holder(s) or underwriter, of (i) an opinion of counsel to the Company, dated as of 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 not to effect any public sale or distribution 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 its Securities included in such registration statement, including a sale pursuant to Rule 144 (or any similar rule then in each case covering substantially the same matters with respect to such registration statement (and the prospectus included thereinforce) 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.
(x) The Company shall promptly notify you 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 except as part of such underwritten registration, during the Company’s discovery that30-day period prior to, or upon and a period of up to 90 days (as determined by the happening managing underwriter) beginning on, the effective date of any event as a result underwritten sale of which, the prospectus included in its Securities made pursuant to 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 you and each holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of you or any such holder(s), the Company shall promptly prepare and furnish to you or such holder(s) 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.
(xi) For purposes of this Agreement, the term “majority” in reference to you and the other holder(s) of a Warrant or the shares underlying an unexercised Warrant, shall mean in excess of fifty percent (50%) of the shares underlying the then outstanding Warrant(s) 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: Warrant Agreement (Unidigital Inc)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7(a) 7.2 or 7.3 hereof, the Company covenants and agrees as follows:
(ia) The Company shall use its best efforts to file a registration statement within ninety (90) 90 days of receipt of any a demand therefore in accordance with therefor pursuant to Section 7(a)7.3 hereof, shall use its reasonable best efforts to have any registration statement statements declared effective at the earliest practicable time, and shall furnish you and each holder Holder desiring to sell the Registrable Warrant Securities held by you or the other holder(s) as a result of any adjustment made pursuant to the provisions of Section 5 hereof, such number of prospectuses as shall reasonably be requested.
(iib) The Company shall pay all costs (excluding fees and expenses of Holder(s)' counsel for you and any other holder(s) and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Section 7(aSections 7.2 and 7.3(a) hereof including, without limitation, the Company’s '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(d), the Company shall, in addition to any other equitable or other relief available to you and any other holder(s), be liable for any or all actual damages (which may include damages due to a loss of profit).
(iiic) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by you and any other holder(sthe 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.
(ivd) The Company shall indemnify you and any other holder(sthe Holder(s) of the Registrable Warrant Securities to be sold pursuant to any registration statement hereunder and each person, if any, who controls you or any other holder(s) such Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the “1934 "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 1934 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 you each of the Underwriters contained in Section 7 of the Placement Agreement to be entered into by and between you and the Company (the “Placement Agreement”) and to provide for just and equitable contribution as set forth in the Placement Underwriting Agreement.
(ve) You and any other holder(sThe Holder(s) of the Registrable Warrant Securities to be sold pursuant to a registration statementstatement hereunder, and their 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 1934 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 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such holder(s)Holders, or their 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 7 of the Placement Underwriting Agreement pursuant to which you the Underwriters have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in the Placement AgreementCompany.
(vif) Nothing contained in this Agreement shall be construed as requiring you or any other holder(sthe Holder(s) to exercise any portion of their Warrant Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(viig) 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 filed during the effectiveness of a registration statement filed pursuant to Section 7.3 hereof (other than 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 covered by such registration statement.
(h) The Company shall furnish to each Holder participating in an offering covered by a registration statement hereunder 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) relating to the due incorporation of the Company, the validity of the shares being sold and the due execution and delivery by the Company of the underwriting agreement, if any, 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, 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' "cold comfort" letters delivered to underwriters in underwritten public offerings of securities.
(i) The Company shall as soon as practicable, and in any event within 15 months 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.
(j) The Company shall deliver promptly to you and any other holder(s) of the Registrable Securities 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 Company-prepared memoranda relating to discussions with the Commission or its staff with respect to the registration statement and permit you each Holder and the other holder(s) of the Registrable Securities 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 Financial Industry Regulatory Authority (“FINRA”); provided that you and each such holder of the Registrable Securities agree not to disclose such information without the prior consent of the CompanyNASD. 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 you and any other holder(s) of the Registrable Securities such Holder or underwriter shall reasonably request.
(viiik) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the The Company shall enter into an underwriting agreement with one or more 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 underwriting agreement shall be satisfactory in form and substance to the Company, you each Holder and each other holder of the Registrable Securitiessuch 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 underwritersmanaging underwriter(s). If required by the underwriters, you and the other holder(s) of the Registrable Securities The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Warrant Securities whether pursuant to Section 7.2 or Section 7.3(a) and may, at their option, require that any or all representations of the representations, warranties and warranties covenants of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, underwriter(s) shall also be made to and for the benefit of you and the other holder(s) of the Registrable Securitiessuch Holders. You and the other holder(s) of the Registrable Securities Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters underwriter(s) except as they may relate to you and the other holder(s) of the Registrable Securities such Holders and their intended methods of distribution, or as otherwise provided for herein.
(ix) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to you and each holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to you, such holder(s) or underwriter, of (i) an opinion of counsel to the Company, dated as of 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.
(x) The Company shall promptly notify you 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 you and each holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of you or any such holder(s), the Company shall promptly prepare and furnish to you or such holder(s) 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.
(xil) For purposes of this Agreement, the term “majority” "Majority" in reference to you and the other holder(s) Holders of a Warrants or Warrant or the shares underlying an unexercised WarrantSecurities, shall mean in excess of fifty percent (50%) % of the shares underlying the then outstanding Warrant(sWarrants or Warrant Securities that (i) 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 therefor or in conjunction therewith and (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 Warrant Agreement (Prospect Medical Holdings Inc)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7(a(h) or (i) hereof, the Company covenants and agrees as follows:
(i) The Company shall use its best efforts to file a registration statement within ninety (90) days of receipt of any demand therefore in accordance with Section 7(a), shall use its best efforts to have any registration statement declared effective at the earliest practicable possible time, and shall furnish you and each holder Holder desiring to sell the Registrable Warrant Securities held by you or the other holder(s) as a result of any adjustment made pursuant to the provisions of Section 5 hereof, such number of prospectuses as shall reasonably be requested.
(ii) The Company shall pay all costs (excluding fees and expenses of Holder(s)' counsel for you and any other holder(s) and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Section 7(aSections (h), (i) and (j) 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(d(j)(i), the Company shall, in addition to any other equitable or other relief available to you and any other holder(sthe Holder(s), be liable for any or all actual damages (which may include damages due to a loss extend the Exercise Period by such number of profit)days as shall equal the delay caused by the Company's failure.
(iii) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrant Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as are reasonably requested by you and any other holder(sthe 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.
(iv) The Company shall indemnify you and any other holder(sthe Holder(s) of the Registrable Warrant Securities to be sold pursuant to any registration statement and each person, if any, who controls you or any other holder(s) such Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the “1934 "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 1934 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 you the Underwriter contained in Section 7 of the Placement Underwriting Agreement relating to be entered into by and between you and the Company (the “Placement Agreement”) and to provide for just and equitable contribution as set forth in the Placement Agreementoffering.
(v) You and any other holder(sThe Holder(s) of the Registrable Warrant Securities to be sold pursuant to a registration statement, and their 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 1934 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 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such holder(s)Holders, or their 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 7 of the Placement Underwriting Agreement pursuant to which you have the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in the Placement AgreementCompany.
(vi) Nothing contained in this Agreement shall be construed as requiring you or any other holder(sThe Holder(s) to may exercise any portion of their Warrant Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(viiviii) 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 to you and any other holder(s) of the Registrable Securities 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 and permit you each Holder and the other holder(s) of the Registrable Securities 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 Financial Industry Regulatory Authority National Association of Securities Dealers, Inc. (“FINRA”); provided that you and each such holder of the Registrable Securities agree not to disclose such information without the prior consent of the Company"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 you and any other holder(s) of the Registrable Securities such Holder or underwriter shall reasonably request.
(viiixi) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the The Company shall enter into an underwriting agreement with one or more underwriters selected for such underwritingthe managing underwriters, which may be the Underwriter. Such underwriting agreement shall be satisfactory in form and substance to the Company, you and each other holder of the Registrable Securitiessuch 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 underwritersmanaging 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. If required by the underwriters, you and the other holder(s) of the Registrable Securities The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Warrant Securities and may, at their option, require that any or all representations the representations, warranties and warranties covenants of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, shall also be made to and for the benefit of you and the other holder(s) of the Registrable Securitiessuch Holders. You and the other holder(s) of the Registrable 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 you and the other holder(s) of the Registrable Securities such Holders and their intended methods of distribution.
(ix) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to you and each holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to you, such holder(s) or underwriter, of (i) an opinion of counsel to the Company, dated as of 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.
(x) The Company shall promptly notify you 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 you and each holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of you or any such holder(s), the Company shall promptly prepare and furnish to you or such holder(s) 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.
(xixii) For purposes of this Agreement, the term “majority” " Majority" in reference to you and the other holder(s) Holders of a Warrants or Warrant or the shares underlying an unexercised WarrantSecurities, shall mean in excess of fifty percent (50%) of the shares underlying the then outstanding Warrant(sWarrants and Warrant Securities that (i) that are not -7- 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 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. In connection with any registration under Section 7(a) hereof, the The Company covenants and agrees as follows:
(i) The Company shall use its best efforts to file a registration statement within ninety (90) days of receipt of any demand therefore in accordance with Section 7(a), shall use its best efforts to have any registration statement declared effective at the earliest practicable time, and shall furnish you and each holder desiring to sell the Registrable Securities held by you or the other holder(s) as a result of any adjustment made pursuant to the provisions of Section 5 hereof, such number of prospectuses as shall reasonably be requested.
(iia) The Company shall pay all costs costs, fees and expenses (excluding other than underwriting fees, discounts and nonaccountable expense allowance applicable to the Registrable Securities and fees and expenses of counsel for you and any other holder(sretained by the Holder) and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Section 7(a) hereof Registration Statements 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 you and any other holder(s), be liable for any or all actual damages (which may include damages due to a loss of profit).
(iiib) The Company will use its reasonable best efforts to take all necessary action which may be required in qualifying or registering the Registrable Securities included in a registration statement the Registration Statement for offering and sale under the securities or blue sky laws of such states as are reasonably requested by you and any other 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 jurisdictionHolder.
(ivc) The To the fullest extent permitted by law, the Company shall will indemnify you and any other holder(s) of hold the Registrable Securities to be sold pursuant to any registration statement and each person, if any, who controls you or any other holder(s) within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the “1934 Act”), against all loss, claim, damage, expense or liability (including all expenses reasonably incurred in investigating, preparing or defending Holder harmless against any claim whatsoever) losses, claims, damages, or liabilities to which any of them it may become subject under the Securities Act, the 1934 Exchange Act or otherwiseother federal or state law, arising from insofar as such registration statement to losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any of the same extent and with the same effect as the provisions pursuant to which the Company has agreed to indemnify you in the Placement Agreement to be entered into by and between you and the Company following statements, omissions or violations (the collectively a “Placement AgreementViolation”) and to provide for just and equitable contribution as set forth in the Placement Agreement.
(v) You and any other holder(s) of the Registrable Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify by 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 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 1934 Act or otherwise, arising from information furnished by or on behalf of such holder(s), or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in the Placement Agreement pursuant to which you have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in the Placement Agreement.
(vi) Nothing contained in this Agreement shall be construed as requiring you or any other holder(s) to exercise any portion of their Warrant prior to the initial filing of any registration statement or the effectiveness thereof.
(vii) The Company shall deliver promptly to you and any other holder(s) 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 and permit you and the other holder(s) of the Registrable Securities 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 Financial Industry Regulatory Authority (“FINRA”); provided that you and each such holder of the Registrable Securities agree 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 you and any other holder(s) of the Registrable Securities shall reasonably request.
(viii) 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, you 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, you and the other holder(s) 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 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 you and the other holder(s) of the Registrable Securities. You and the other holder(s) 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 you and the other holder(s) of the Registrable Securities and their intended methods of distribution.
(ix) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to you and each holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to you, such holder(s) or underwriter, of : (i) an opinion of counsel to the Company, dated as of the effective date of such registration any untrue 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.
(x) The Company shall promptly notify you 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 alleged untrue statement of a material fact contained in the Registration Statement, including any preliminary prospectus or omits final prospectus contained therein or any amendments or supplements thereto, (ii) the omission or alleged omission to state any therein a material fact required to be stated therein therein, or necessary to make the statements therein not misleading in the light of the circumstances under which they were mademisleading, and upon receipt of such notice you and each holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of you or any such holder(s), the Company shall promptly prepare and furnish to you or such holder(s) 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.
(xi) For purposes of this Agreement, the term “majority” in reference to you and the other holder(s) of a Common Stock Warrant or the shares underlying an unexercised Warrant, shall mean in excess of fifty percent (50%) of the shares underlying the then outstanding Warrant(s) 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.7
Appears in 1 contract
Samples: License Agreement (Histogenics Corp)
Covenants of the Company With Respect to Registration. In connection with the filing of any registration under Section 7(a) hereofRegistration Document by the Company, the Company covenants and agrees as follows:
(ia) The Company shall use its best efforts to file a registration statement within ninety forty-five (9045) days of receipt of any demand therefore in accordance with pursuant to Section 7(a)7.3, and shall use its best efforts to have any such registration statement declared effective at the earliest practicable time. The Company will promptly notify each seller of such Registrable Securities and confirm such advice in writing, (i) when such registration statement becomes effective, (ii) when any post-effective amendment to such registration statement becomes effective and (iii) of any request by the SEC for any amendment or supplement to such registration statement or any prospectus relating thereto or for additional information. The Company shall furnish to each seller of such Registrable Securities such number of copies of such registration statement and of each such amendment and supplement thereto (in each case including each preliminary prospectus and summary prospectus) in conformity with the requirements of the Act, and shall furnish you and each holder desiring such other documents as such seller may reasonably request in order to sell facilitate the disposition of the Registrable Securities held by you or the other holder(s) as a result of any adjustment made pursuant to the provisions of Section 5 hereof, such number of prospectuses as shall reasonably be requestedseller.
(iib) The Company shall pay all costs (excluding transfer taxes, if any, and fees and expenses of Holder(s)' counsel for you and any other holder(s) and any underwriting the Holder's pro-rata portion of the selling discount or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Section 7(aSections 7.2 and 7.3(a) hereof including, without limitation, the Company’s '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(d), the Company shall, in addition to any other equitable or other relief available to you and any other holder(s), be liable for any or all actual damages (which may include damages due to a loss of profit).
(iii) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as are reasonably requested by you and any other 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.
(iv) The Company shall indemnify you and any other holder(s) of the Registrable Securities to be sold pursuant to any registration statement and each person, if any, who controls you or any other holder(s) within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the “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 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 you in the Placement Agreement to be entered into by and between you and the Company (the “Placement Agreement”) and to provide for just and equitable contribution as set forth in the Placement Agreement.
(v) You and any other holder(s) of the Registrable Securities to be sold pursuant to a registration statement, and their 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 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 1934 Act or otherwise, arising from information furnished by or on behalf of such holder(s), or their successors or assigns, for specific inclusion in such registration statement to the same extent and with the same effect as the provisions contained in the Placement Agreement pursuant to which you have agreed to indemnify the Company and to provide for just and equitable contribution as set forth in the Placement Agreement.
(vi) Nothing contained in this Agreement shall be construed as requiring you or any other holder(s) to exercise any portion of their Warrant prior to the initial filing of any registration statement or the effectiveness thereof.
(vii) The Company shall deliver promptly to you and any other holder(s) 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 and permit you and the other holder(s) of the Registrable Securities 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 Financial Industry Regulatory Authority (“FINRA”); provided that you and each such holder of the Registrable Securities agree 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 you and any other holder(s) of the Registrable Securities shall reasonably request.
(viii) 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, you 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, you and the other holder(s) 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 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 you and the other holder(s) of the Registrable Securities. You and the other holder(s) 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 you and the other holder(s) of the Registrable Securities and their intended methods of distribution.
(ix) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to you and each holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to you, such holder(s) or underwriter, of (i) an opinion of counsel to the Company, dated as of 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.
(x) The Company shall promptly notify you 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 you and each holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of you or any such holder(s), the Company shall promptly prepare and furnish to you or such holder(s) 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.
(xi) For purposes of this Agreement, the term “majority” in reference to you and the other holder(s) of a Warrant or the shares underlying an unexercised Warrant, shall mean in excess of fifty percent (50%) of the shares underlying the then outstanding Warrant(s) 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.Section
Appears in 1 contract
Samples: Underwriter's Warrant Agreement (Eagle Supply Group Inc)
Covenants of the Company With Respect to Registration. In connection with any registration under Section 7(a) 7.2 or 7.3 hereof, the Company covenants and agrees as follows:
(ia) The Company shall use its best efforts to file a registration statement within ninety forty-five (9045) days of receipt of any demand therefore therefor in accordance with Section 7(a)7.1, shall use its best efforts to have any registration statement declared effective at the earliest practicable possible time, and shall furnish you and each holder Holder desiring to sell the Registrable Securities held by you or Units underlying the other holder(s) as a result of any adjustment made pursuant to the provisions of Section 5 hereof, Underwriter's Unit Option Warrant and UW Units 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 Rule 10b-6 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.
(iib) The Company shall pay all costs (excluding fees and expenses of Holder(s) counsel for you and any other holder(s) and any underwriting or selling commissions), fees and expenses in connection with all registration statements filed pursuant to Section 7(aSections 7.2 and 7.3(a) hereof including, without limitation, the Company’s '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(d7.4(a), the Company shall, in addition to any other equitable or other relief available to you and any other holder(sthe Holder(s), be liable for any or all actual incidental, special and consequential damages (which may include and damages due to a loss of profit)profit sustained by the Holder(s) requesting registration of their Underwriter's Unit Option Warrant, UW Units Unit Shares and Unit Warrants underlying the Underwriter's Unit Option Warrant.
(iiic) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities Underwriter's Unit Option Warrant, UW Units, Unit Shares and Unit Warrants and underxxxxx xxx Xxxxxxxxxxx'x Xxxx Xxxxxx Xxxxxxt included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by you and any other holder(sthe 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.
(ivd) The Company shall indemnify you and any other holder(sthe Holder(s) of the Registrable Securities Underwriter's Unit Option Warrant, UW Units Unit Shares and Unit Warrants to be sold pursuant to any registration statement and each person, if any, who controls you or any other holder(s) such Holders within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the “1934 "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 1934 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 you the Underwriter contained in Section 7 of the Placement Agreement to be entered into by and between you and the Company (the “Placement Agreement”) and to provide for just and equitable contribution as set forth in the Placement Underwriting Agreement.
(ve) You and any other holder(sThe Holder(s) of the Registrable Securities Underwriter's Unit Option Warrant, UW Units Unit Shares and Unit Warrants underlying the Underwriter's Unit Option Warrant to be sold pursuant to a registration statement, and their 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 1934 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 1934 Exchange Act or otherwise, arising from information furnished by or on behalf of such holder(s)Holders, or their 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 7 of the Placement Underwriting Agreement pursuant to which you have the Underwriter has agreed to indemnify the Company and to provide for just and equitable contribution as set forth in the Placement AgreementCompany.
(vif) Nothing contained in this Agreement shall be construed as requiring you or any other holder(sthe Holder(s) to exercise any portion of their Underwriter's Unit Option Warrant or the UW Units prior to the initial filing of any registration statement or the effectiveness thereof.
(viig) If the Underwriters' Warrants, UW Units Unit Shares and Unit Warrants underlying the UW 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 to you and any other holder(s) of the Registrable Securities 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 and permit you each Holder and the other holder(s) of the Registrable Securities 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 Financial Industry Regulatory Authority National Association of Securities Dealers, Inc. (“FINRA”"NASD"); provided that you and each such holder of the Registrable Securities agree 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 you and any other holder(s) of the Registrable Securities such Holder shall reasonably request.
(viiij) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the The Company shall enter into an underwriting agreement with one or more underwriters the managing underwriter(s) selected for such underwriting, if any, by Holders holding a Majority of the Underwriter's Unit Option Warrant, UW Units Unit Shares and Unit Warrants underlying the Underwriter's Unit Option Warrant requested to be included in such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, you each Holder and each other holder of the Registrable Securitiessuch 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 underwritersmanaging underwriter(s). If required by the underwriters, you and the other holder(s) of the Registrable Securities The Holders shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Securities Underwriter's Unit Option Warrant, UW Units and the Units underlying the Underwriter's Unit Option Warrant and may, at their option, require that any or all representations the representations, warranties and warranties covenants of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, underwriter(s) shall also be made to and for the benefit of you and the other holder(s) of the Registrable Securitiessuch Holders. You and the other holder(s) of the Registrable Securities Such Holders shall not be required to make any representations or warranties to or agreements with the Company or the underwriters underwriter(s) except as they may relate to you and the other holder(s) of the Registrable Securities and such Holders, their intended methods of distribution.
(ix) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to you and each holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to you, such holder(s) or underwriter, of (i) an opinion of counsel to the Company, dated as of 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 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 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 rules and in accountants’ letters delivered to underwriters in underwritten public offerings of securitiesregulations thereunder.
(x) The Company shall promptly notify you 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 you and each holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of you or any such holder(s), the Company shall promptly prepare and furnish to you or such holder(s) 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.
(xik) For purposes of this Agreement, the term “majority” "Majority" in reference to you the Holders of Underwriter's Unit Option Warrant, UW Units Unit Shares and the other holder(s) of a Warrant or the shares underlying an unexercised WarrantUnit Warrants, shall mean in excess of fifty percent (50%) of the shares underlying the then outstanding Warrant(sUnits, assuming the full exercise of all Underwriter's Unit Option Warrant and UW Units that (i) that 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: Underwriter's Option Agreement for Units (99 Cent Stuff Inc)
Covenants of the Company With Respect to Registration. In ----------------------------------------------------- connection with any registration under Section 7(a) 7.2 or Section 7.3 hereof, the ------- ------- Company covenants and agrees as follows:
(ia) The Company shall use its best efforts to file a registration statement within ninety forty-five (9045) days of receipt of any demand therefore in accordance with Section 7(a)there or, shall use its best efforts to have any registration statement statements declared effective at the earliest practicable possible time, and shall furnish you and each holder Holder(s) desiring to sell the Registrable Warrants and/or Warrant Securities held by you or the other holder(s) as a result of any adjustment made pursuant to the provisions of Section 5 hereof, such number of prospectuses as shall reasonably be requested.
(iib) The Company shall pay all costs (excluding fees and expenses of Holder(s)' counsel for you and any other holder(s) and any underwriting or selling commissionscommissions or other charges of any broker-dealer acting on behalf of Holder(s)), fees and expenses in connection with all registration statements filed pursuant to Section 7(aSections 7.2 and 7.3(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(d7.4(a), the Company ------- shall, in addition to any other equitable or other relief available to you and any other holder(sthe Holder(s), be liable for any and all incidental or all actual special damages (which may include damages due to a loss sustained by the Holder(s) requesting registration of profit)its or their Warrants and/or Warrant Securities.
(iiic) The Company will take all necessary action which may be required in qualifying or registering the Registrable Warrants and the Warrant Securities included in a registration statement for offering and sale under the securities or blue sky laws of such states as reasonably are reasonably requested by you and any other holder(sthe 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.
(ivd) The Company shall indemnify you and any other holder(sindemnity the Holder(s) of the Registrable Warrants and the Warrant Securities to be sold pursuant to any registration statement and each person, if any, who controls you or any other holder(ssuch Holder(s) within the meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act of 1934, as amended (the “1934 "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 1934 Exchange Act or otherwise, otherwise arising from such registration statement but only to the same extent and with the same effect as the provisions contained in Section 7 of the Underwriting Agreement pursuant to which the Company has agreed to indemnify you in indemnity the Placement Agreement to be entered into by and between you and the Company (the “Placement Agreement”) and to provide for just and equitable contribution as set forth in the Placement AgreementUnderwriters.
(ve) You and any other holder(sThe Holder(s) of the Registrable Warrants and Warrant Securities to be sold pursuant to a registration statement, and their successors and assigns, shall severally, and not jointly, indemnify indemnity 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 1934 Act, 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 any of them may become subject under the Act, the 1934 Exchange Act or otherwise, otherwise arising from information furnished by or on behalf of such holder(sHolder(s), or their 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 7 of the Placement Underwriting Agreement pursuant to which you the Underwriters have agreed to indemnify indemnity the Company and to provide for just and equitable contribution as set forth in the Placement AgreementCompany.
(vif) Nothing contained in this Agreement shall be construed as requiring you or any other holder(sthe Holder(s) to exercise any portion of its or their Warrant Warrants prior to the initial filing of any registration statement or the effectiveness thereof.
(viig) The Company shall not permit the inclusion of any securities other than the Warrants and 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 Holder(s) of the Warrants and the 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(s) and underwriter(s), 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 fifteen (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 twelve (12) consecutive months beginning after the effective date of the registration statement.
(j) The Company shall deliver promptly to you and any other holder(s) of the Registrable Securities 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 and permit you each Holder and the other holder(s) of the Registrable Securities 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 the rules of the Financial Industry Regulatory Authority (“FINRA”); provided that you and each such holder of the Registrable Securities agree not to disclose such information without the prior consent of the CompanyNASD. 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 you and any other holder(ssuch Holder(s) of the Registrable Securities shall reasonably request.
(viiik) If required by the underwriters in connection with an underwritten offering which includes Registrable Securities pursuant to this Section 7, the The Company shall enter into an underwriting agreement with one or more the managing underwriters selected for such underwriting by Holder(s) of a Majority of the Warrants and the Warrant Securities requested to be included in such underwriting. Such underwriting agreement shall be satisfactory in form and substance to the Company, you a Majority of such Holder(s) and each other holder of the Registrable Securitiessuch 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 underwriters. If required by the underwriters, you and the other holder(sThe Holder(s) of the Registrable Securities shall be parties to any underwriting agreement relating to an underwritten sale of their Registrable Warrants and/or Warrant Securities and may, at their option, require that any or all representations the representations, warranties and warranties covenants of the Company to or for the benefit of such underwriters shall, to the extent that they may be applicable, shall also be made to and for the benefit of you and the other holder(ssuch Holder(s). Such Holder(s) of the Registrable Securities. You and the other holder(s) 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 you and the other holder(ssuch Holder(s) of the Registrable Securities and their intended methods of distribution.
(ixl) In connection with any registration statement filed pursuant addition to Section 7 hereofthe Warrants and the Warrant Securities, upon the written request therefor by Holder(s) of the Warrants and the Warrant Securities representing a Majority of such securities, the Company shall furnish, or cause to be furnished, to you and each holder participating include in the registration statement any underwritten offering and to each underwriter, a signed counterpart, addressed to you, other securities of the Company held by such holder(sHolder(s) or underwriter, of (i) an opinion of counsel to the Company, dated as of the effective date of such registration statement (and, if such registration includes an underwritten public offering, an opinion dated the date filing 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) andincluding, in the case without limitation, restricted shares of such accountants’ letterCommon Stock, with respect to events subsequent to the date options, warrants or any other securities convertible into shares 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 securitiesCommon Stock.
(x) The Company shall promptly notify you 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 you and each holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of you or any such holder(s), the Company shall promptly prepare and furnish to you or such holder(s) 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.
(xim) For purposes of this Agreement, the term “majority” "Majority" in reference to you and the other holder(sHolder(s) of a Warrants or Warrant or the shares underlying an unexercised Warrant, Securities shall mean in excess of fifty percent (50%) of the shares underlying the then outstanding Warrant(sWarrants or Warrant Securities (assuming the exercise of all the 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 or 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. In connection with any registration under Section 7(a) hereof, the The Company covenants and agrees as follows:
(ia) The In connection with any registration under Section 7.4 hereof, the Company shall use its best efforts to file a registration statement within ninety the Registration Statement as expeditiously as possible, but in no event later than thirty (9030) days of following receipt of any demand therefore in accordance with Section 7(a)therefor, shall use its best efforts to have any registration statement such Registration Statements declared effective at the earliest practicable possible time. If a written request, however, is received by the Company that would require the filing of a Registration Statement between 45 and 105 days after the end of its fiscal year, the deadline for the filing of the Registration Statement shall be extended until the 106th day of such fiscal year. The Company shall furnish you and each holder desiring to sell the of Registrable Securities held by you or the other holder(s) as a result of any adjustment made pursuant to the provisions of Section 5 hereof, such number of prospectuses as shall reasonably be requested. However, in connection with any registration under Sections 7.3 and 7.4 hereof, the Company shall have sole control in connection with the preparation, filing, amending and supplementing of the Registration Statement, including the right to withdraw the same or delay the effectiveness thereof when, in the sole judgment of the Board of Directors of the Company, the filing or pendency of such registration statement or the effectiveness thereof would impose an undue burden upon the ability by the Company to proceed with any other material financing for its own account or any material corporate transaction, including, but not limited to, a reorganization, recapitalization, merger, consolidation or material acquisition of the securities or assets of another firm or corporation; provided, however, that the Company's exercise of any such right of withdrawal or delay shall not be deemed a waiver of the rights of the Holders, and the Company shall be required to file a new Registration Statement or to proceed with such actions as reasonably may be required to cause the Registration Statement to become effective within a reasonable time after the consummation of the event or transaction which required such withdrawal or delay.
(iib) The Company shall pay all costs (excluding fees and expenses of counsel for you and any other holder(s) and any underwriting or selling commissions)costs, fees and expenses in connection with all registration statements Registration Statements filed pursuant to Section 7(aSections 7.3 and 7.4(a) hereof including, without limitation, the Company’s 's legal and accounting fees, printing expenses, and blue sky fees and expenses. If Each Holder, however, shall pay the Company shall fail underwriting discount attributable to comply such Holder's Registrable Securities, any transfer tax payable with respect thereto and the provisions fees and expenses of Section 7(d), the Company shall, in addition to any other equitable or other relief available to you and any other holder(s), be liable for any or all actual damages (which may include damages due to a loss of profit)such Holder's counsel.
(iiic) The Company will take all necessary action which may be required in qualifying or registering the Registrable Securities included in a registration statement Registration Statement for offering and sale under the securities or blue sky laws of such states as are reasonably requested by you and any other holder(s)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.
(ivd) The Company shall indemnify you and any other holder(s) holder of the Registrable Securities to be sold pursuant to any registration statement Registration Statement and any underwriter or person deemed to be an underwriter under the Act and each person, if any, who controls you such holder or any other holder(s) 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 “1934 "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 1934 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 you the Underwriters contained in Section 8 of the Placement Underwriting Agreement to be entered into by and between you and the Company (the “Placement Agreement”) and to shall provide for just and equitable contribution as set forth in Section 8 of the Placement Underwriting Agreement.
(ve) You and any other holder(s) Any holder of the Registrable Securities to be sold pursuant to a registration statementRegistration Statement, and their 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 1934 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 1934 Exchange Act or otherwise, arising from information furnished in writing by or on behalf of such holder(s)holder, or their 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 contained in Section 8 of the Placement Underwriting Agreement pursuant to which you the Underwriters have agreed to indemnify the Company and to shall provide for just and equitable contribution as set forth in Section 8 of the Placement Underwriting Agreement.
(vif) Nothing contained in this Agreement shall be construed as requiring you or any other holder(s) Holder to exercise any portion of their Warrant his Warrants prior to the initial filing of any registration statement Registration Statement or the effectiveness thereof.
(viig) 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 that request registration of their Registrable Securities.
(h) Except as set forth in Section 7.5(j) hereof, 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, or permit a Registration Statement relating to an underwritten offering of the same securities as the Registrable Securities to be filed during an underwritten offering of the Registrable Securities covered by a 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.
(i) The Company shall deliver promptly to you and any other holder(s) each holder of the Registrable Securities participating in the offering in which such Holder's shares are being registered pursuant to Section 7.3 hereof and requesting the correspondence and memoranda described in this Section 7.5(i) 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 Registration Statement and permit you and the other holder(s) each holder of the Registrable Securities and 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 Financial Industry Regulatory Authority (“FINRA”); provided that you and each such holder National Association of the Registrable Securities agree not to disclose such information without the prior consent of the Company. 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 you and any other holder(s) such holder of the Registrable Securities or underwriter shall reasonably request.
(viiij) If required Upon the written request therefor by the underwriters in connection with an underwritten offering which includes any holders of Registrable Securities pursuant to this Section 7Securities, the Company shall enter into include in the Registration Statement filed for an underwriting agreement underwritten offering covering any such holders Registrable Securities, any additional shares of Common Stock of the Company held by such holders as of the date of filing of such Registration Statement. The holders shall pay any additional costs, fees and expenses associated with one the inclusion on such Registration Statement of any of such holders shares of Common Stock that are not Registerable Securities that are included on the Registration Statement. Notwithstanding the foregoing, if any such managing underwriter shall advise the Company in writing that, in its opinion, the distribution of all or more underwriters selected for a portion of the Common Stock that are not Registrable Securities requested to be included in the Registration Statement concurrently with the Registrable Securities being registered by such underwriting. Such underwriting agreement holders would materially adversely affect the distribution of such offering then such additional shares of Common Stock shall be satisfactory excluded from the Registration Statement.
(k) Upon the written request therefor by any holders of Registrable Securities, the Company shall include in form and substance to the Company, you and each other holder Registration Statement filed for a non-underwritten offering covering any of the Registrable Securities, and shall contain such representations, warranties and covenants by the Company and such any other terms as are customarily contained in agreements of that type used by the underwriters. If required by the underwriters, you and the other holder(s) 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 representations and warranties securities of the Company to or for the benefit of held by such underwriters shall, to the extent that they may be applicable, also be made to and for the benefit of you and the other holder(s) of the Registrable Securities. You and the other holder(s) 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 you and the other holder(s) of the Registrable Securities and their intended methods of distribution.
(ix) In connection with any registration statement filed pursuant to Section 7 hereof, the Company shall furnish, or cause to be furnished, to you and each holder participating in any underwritten offering and to each underwriter, a signed counterpart, addressed to you, such holder(s) or underwriter, of (i) an opinion of counsel to the Company, dated holders as of the effective date of filing of such registration statement (andRegistration Statement, if including, without limitation, restricted shares of Common Stock, options, warrants or any other securities convertible into shares of Common Stock. The holders shall pay any additional costs, fees and expenses associated with the inclusion on such registration includes an underwritten public offering, an opinion dated the date Registration Statement of any of such holders other securities 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 Company that are not Registerable Securities that are included 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 securitiesRegistration Statement.
(x) The Company shall promptly notify you 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 you and each holder shall not effect any sale of securities and shall immediately cease utilizing or distributing such prospectus. At the request of you or any such holder(s), the Company shall promptly prepare and furnish to you or such holder(s) 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.
(xi) For purposes of this Agreement, the term “majority” in reference to you and the other holder(s) of a Warrant or the shares underlying an unexercised Warrant, shall mean in excess of fifty percent (50%) of the shares underlying the then outstanding Warrant(s) 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.
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