Effective Date of Agreement and Termination. This Agreement shall become effective upon the execution and delivery of this Agreement by the parties hereto. This Agreement may be terminated at any time on or prior to the Closing Date by you by notice to the Company if any of the following has occurred: (i) on or after the Applicable Time, any Material Adverse Effect occurs, which, in the judgment of the Representatives, makes it impracticable or inadvisable to market the Securities or to enforce contracts for sale of the Securities, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in the financial markets of the United States or elsewhere, or any other substantial national or international calamity or emergency if the effect of such outbreak, escalation, calamity, crisis or emergency would, in the judgment of the Representatives, make it impracticable or inadvisable to market the Securities or to enforce contracts for the sale of the Securities, (iii) any suspension or limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, the NASDAQ Stock Market or any setting of minimum prices for trading on such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iv) any declaration of a general banking moratorium by federal, New York or Maryland authorities, (v) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that in your judgment has a material adverse effect on the financial markets in the United States, and would, in the judgment of the Representatives, make it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decree, or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made pursuant to this Agreement shall remain operative and in full force and effect, and will survive delivery of and payment for the Securities, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securities) of the second paragraph of this Section 11 or because of the failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any termination of this Agreement, the Company shall be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereof. Except as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 5 contracts
Samples: Underwriting Agreement (Host Hotels & Resorts L.P.), Underwriting Agreement (Host Hotels & Resorts L.P.), Underwriting Agreement (Host Hotels & Resorts L.P.)
Effective Date of Agreement and Termination. This Agreement shall become effective upon the execution and delivery of this Agreement by the parties hereto. This Agreement may be terminated at any time on or prior to the Closing Date by you by notice to the Company if any of the following has occurred: occurred (i) on or after the Applicable Time, any Material Adverse Effect Change occurs, which, in the judgment of the Representatives, makes it impracticable or inadvisable to market the Securities or to enforce contracts for sale of the Securities, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in the financial markets of the United States or elsewhere, or any other substantial national or international calamity or emergency if the effect of such outbreak, escalation, calamity, crisis or emergency would, in the judgment of the Representatives, make it impracticable or inadvisable to market the Securities or to enforce contracts for the sale of the Securities, (iii) any suspension or limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, the NASDAQ Stock Market or in the over-the-counter markets or any setting of minimum prices for trading on such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iv) any declaration of a general banking moratorium by federalFederal, New York or Maryland authorities, (v) the taking of any action by any federalFederal, state or local government or agency in respect of its monetary or fiscal affairs that in your judgment has a material adverse effect on the financial markets in the United States, and would, in the judgment of the Representatives, make it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decree, or other promulgation of any federal Federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made pursuant to this Agreement shall remain operative and in full force and effect, and will survive delivery of and payment for the Securities, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securities) of the second paragraph of this Section 11 or because of the failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any termination of this Agreement, the Company shall be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereof. Except as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 5 contracts
Samples: Underwriting Agreement (Host Hotels & Resorts, Inc.), Underwriting Agreement (Host Hotels & Resorts L.P.), Underwriting Agreement (Host Hotels & Resorts L.P.)
Effective Date of Agreement and Termination. This Agreement shall become effective upon the execution and delivery of this Agreement by the parties heretoAgreement. This Agreement may be terminated at any time on or prior to the Closing Date by you by written notice to the Company if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is given in the Registration Statement and the Prospectus, any there has been a Material Adverse Effect occurs, which, in the judgment of the Representatives, makes it impracticable or inadvisable to market the Securities or to enforce contracts for sale of the SecuritiesEffect, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in economic conditions or in the financial markets of the United States or elsewhereelsewhere that, or any other substantial national or international calamity or emergency if the effect of such outbreakin your judgment, escalation, calamity, crisis or emergency is material and adverse and would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable (x) to market commence or continue the Securities offering of the shares to the public or (y) to enforce contracts for the sale of the Securitiesshares, (iii) any the suspension or material limitation of trading in the Company’s securities or in trading generally in securities on the New York NYSE or the American Stock Exchange, the NYSE Amex Equities, the NASDAQ Stock Market Exchange or any setting of minimum material limitation on prices for trading securities on either of such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United Statesexchanges, (iv) (a) the downgrading of any of the debt securities of any of the Transaction Entities or any of their subsidiaries by any "nationally recognized statistical rating organization" or the announcement by any such organization of an initial rating with respect to any such securities that is below the ratings of other such organizations in effect for such securities on the date hereof, or (b) the public announcement by any such organization that it has under surveillance or review, with possible negative implications, its rating of any of such securities, (v) the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which in your opinion would result in a Material Adverse Effect, (vi) the declaration of a general banking moratorium by federal, either federal or New York State authorities or Maryland authorities, (vvii) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your judgment opinion has a material adverse effect on the financial markets in the United States, and would, in the judgment of the Representatives, make it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decree, or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made pursuant to this Agreement shall remain operative and in full force and effect, and will survive delivery of and payment for the Securities, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securities) of the second paragraph of this Section 11 or because of the failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any termination of this Agreement, the Company shall be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereof. Except as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 3 contracts
Samples: Underwriting Agreement (Brandywine Realty Trust), Underwriting Agreement (Brandywine Realty Trust), Underwriting Agreement (Brandywine Realty Trust)
Effective Date of Agreement and Termination. This Agreement shall become effective upon the execution and delivery of this Agreement by the parties heretoAgreement. This Agreement may be terminated at any time on or prior to the Closing Date by you the Representatives by written notice to the Company if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is given in the Registration Statement and the Prospectus and since the Time of Sale, any Material Adverse Effect occurs, which, in the judgment of the Representatives, makes it impracticable or inadvisable to market the Securities or to enforce contracts for sale of the Securities, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change or development involving a prospective material adverse change (including, without limitation, the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority) in the condition, financial markets or otherwise, of the United States Company and its subsidiaries taken as a whole or elsewherethe earnings, affairs, or any other substantial national business prospects of the Company and its subsidiaries taken as a whole, whether or international calamity or emergency if not arising in the effect ordinary course of such outbreakbusiness, escalation, calamity, crisis or emergency which would, in the judgment of the Representatives, make it impracticable or inadvisable to market the Securities on the terms and in the manner contemplated in the Prospectus, (ii) any outbreak or to enforce contracts for escalation of hostilities or other national or international calamity or crisis (including, without limitation, an act of terrorism) or change in economic conditions or in the sale financial markets of the SecuritiesUnited States or elsewhere that, in the judgment of the Representatives, is material and adverse and would, in the judgment of the Representatives, make it impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus, (iii) any the suspension or material limitation of trading in the Company’s securities generally, or in trading generally in the securities of the Company listed, on the New York Stock Exchange, the NYSE Amex EquitiesAmerican or The Nasdaq Stock Market, the NASDAQ Stock Market or limitation on prices on any setting of minimum prices for trading on such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United Statesexchange, (iv) any declaration of a general banking moratorium material disruption in securities settlement that makes it impracticable to deliver the Securities in the manner contemplated by federalthe Prospectus, New York or Maryland authorities, (v) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your judgment the opinion of the Representatives has a material adverse effect on the financial markets in the United States. If on the Closing Date any one or more of the Underwriters shall fail or refuse to purchase and pay for any of the Securities which it or they have agreed to purchase hereunder on such date and the aggregate principal amount of the Securities which such defaulting Underwriter or Underwriters, and wouldas the case may be, agreed but failed or refused to purchase is not more than one-tenth of the total principal amount of Securities to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, in the judgment proportion which the principal amount of Securities set forth opposite its name in Schedule I bears to the Representativestotal principal amount of Securities which all the non-defaulting Underwriters, make it impracticable as the case may be, have agreed to purchase, or inadvisable in such other proportion as the Representatives may specify, to proceed with the offering, sale or delivery of purchase the Securities which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase on such date; provided that in no event shall the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or principal amount of Securities which any Underwriter has agreed to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decree, or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made purchase pursuant to Section 2 hereof be increased pursuant to this Agreement Section 10 by an amount in excess of one-ninth of such principal amount of Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters shall remain operative and in full force and effect, and will survive delivery of and payment for the Securities, regardless of (i) any investigation, fail or statement as refuse to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the purchase Securities and payment for them hereunder and (iii) termination the aggregate principal amount of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (Securities with respect to the Company’s securities) which such default occurs is more than one-tenth of the second paragraph aggregate principal amount of Securities to be purchased on such date by all Underwriters and arrangements satisfactory to the Representatives and the Company for purchase of such Securities are not made within 48 hours after such default, this Section 11 or because of the failure or refusal Agreement will terminate without liability on the part of any non-defaulting Underwriter and the Company to comply with the terms or to fulfill Company. In any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any such case which does not result in termination of this Agreement, either the Representatives or the Company shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement and the Prospectus or any other documents or arrangements may be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereofeffected. Except as otherwise provided, Any action taken under this Agreement has been and is made solely for the benefit paragraph shall not relieve any defaulting Underwriter from liability in respect of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in default of any such Underwriter under this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 2 contracts
Samples: Underwriting Agreement (Capital One Financial Corp), Underwriting Agreement (Capital One Financial Corp)
Effective Date of Agreement and Termination. This Agreement shall become effective upon the execution and delivery of this Agreement by the parties hereto. This Agreement may be terminated at any time on or prior to the Closing Date by you by written notice to the Company if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is given in the Registration Statement and the Prospectus, any Material Adverse Effect occursadverse change or development involving a prospective adverse change in the condition, whichfinancial or otherwise, of the Company and its subsidiaries, taken as a whole, or the earnings, affairs, or business prospects of the Company and its subsidiaries, taken as a whole, whether or not arising in the ordinary course of business, which would, in the judgment of the Representativesyour judgment, makes make it impracticable or inadvisable to market the Securities or to enforce contracts for sale of on the Securitiesterms and in the manner contemplated in the Prospectus, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in economic conditions or in the financial markets of the United States or elsewhereelsewhere that, or any other substantial national or international calamity or emergency if the effect of such outbreakin your judgment, escalation, calamity, crisis or emergency is material and adverse and would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to market the Securities or to enforce contracts for the sale of the SecuritiesSecurities on the terms and in the manner contemplated in the Prospectus, (iii) any the suspension or limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, American Stock Exchange or the NASDAQ Stock National Association of Securities Dealers Automated Quotation System National Market or any setting of minimum limitation on prices for trading securities on any such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United Statesnational market, (iv) the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which, in your judgment, materially and adversely affects, or will materially and adversely affect, the business or operations of the Company or any subsidiary of the Company, (v) the declaration of a general banking moratorium by federal, either federal or New York State authorities or Maryland authorities, (vvi) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which, in your judgment judgment, has a material adverse effect on the financial markets in the United States, States and would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to proceed with the offering, sale or delivery of market the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decree, or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made pursuant to this Agreement shall remain operative and in full force and effect, and will survive delivery of and payment for the Securities, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securities) of the second paragraph of this Section 11 or because of the failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any termination of this Agreement, the Company shall be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereof. Except as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 2 contracts
Samples: Underwriting Agreement (Arcadia Financial LTD), Underwriting Agreement (Olympic Financial LTD)
Effective Date of Agreement and Termination. This Agreement shall become effective upon the later of (i) execution and delivery of this Agreement and (ii) when notification of the effectiveness of the Registration Statement has been telephonically released by the parties heretoCommission. This Agreement may be terminated at any time on or prior to the Closing Date by you by written notice to the Company if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is given in the Registration Statement and the Prospectus, any Material Adverse Effect occursmaterial adverse change or development involving a prospective material adverse change in the condition, whichfinancial or otherwise, of the Company and the Subsidiaries, taken as a whole, or the earnings, affairs, or business prospects of the Company or any of the Subsidiaries, taken as a whole, whether or not arising in the ordinary course of business, which would, in the judgment of the Representativesyour judgment, makes make it impracticable or inadvisable to market the Securities or to enforce contracts for sale of Underwritten Shares on the Securitiesterms and in the manner contemplated in the Prospectus, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in economic conditions or in the financial markets of the United States or elsewhereelsewhere that, or any other substantial national or international calamity or emergency if the effect of such outbreakin your judgment, escalation, calamity, crisis or emergency is material and adverse and would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to market the Securities or to enforce contracts for Underwritten Shares on the sale of terms and in the Securitiesmanner contemplated in the Prospectus, (iii) any the suspension or material limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, American Stock Exchange or the NASDAQ Stock Nasdaq National Market System or any setting of minimum limitation on prices for trading securities on any such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United StatesNational Market System, (iv) the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which in your opinion materially and adversely affects, or will materially and adversely affect, the business or operations of the Company or any subsidiary, (v) the declaration of a general banking moratorium by federal, either federal or New York State authorities or Maryland authorities, (vvi) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your judgment opinion has a material adverse effect on the financial markets in the United States. If on the Closing Date or on the Option Closing Date, as the case may be, any one or more of the Underwriters shall fail or refuse to purchase the Firm Shares or Additional Shares, as the case may be, which it or they have agreed to purchase hereunder on such date and wouldthe aggregate number of Firm Shares or Additional Shares, as the case may be, which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase is not more than one-tenth of the total number of Underwritten Shares to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, in the judgment proportion which the number of Firm Shares set forth opposite its name in Schedule I bears to the Representativestotal number of Firm Shares which all the non-defaulting Underwriters, make it impracticable or inadvisable as the case may be, have agreed to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decreepurchase, or in such other promulgation proportion as you may specify, to purchase the Firm 24 Shares or Additional Shares, as the case may be, which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase on such date; provided that in no event shall the number of Firm Shares or Additional Shares, as the case may be, which any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made Underwriter has agreed to purchase pursuant to Section 2 hereof be increased pursuant to this Agreement Section 9 by an amount in excess of one-ninth of such number of Firm Shares or Additional Shares, as the case may be, without the written consent of such Underwriter. If on the Closing Date or on the Option Closing Date, as the case may be, any Underwriter or Underwriters shall remain operative and in full force and effectfail or refuse to purchase Firm Shares, or Additional Shares, as the case may be, and will survive delivery the aggregate number of and payment for Firm Shares or Additional Shares, as the Securitiescase may be, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securities) which such default occurs is more than one-tenth of the second paragraph aggregate number of Underwritten Shares to be purchased on such date by all Underwriters and arrangements satisfactory to you and the Company for purchase of such Underwritten Shares are not made within 48 hours after such default, this Section 11 or because of the failure or refusal Agreement will terminate without liability on the part of any non-defaulting Underwriter and the Company to comply with the terms or to fulfill Company. In any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any such case which does not result in termination of this Agreement, either you or the Company shall have the right to postpone the Closing Date or the Option Closing Date, as the case may be, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement and the Prospectus or any other documents or arrangements may be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereofeffected. Except as otherwise provided, Any action taken under this Agreement has been and is made solely for the benefit paragraph shall not relieve any defaulting Underwriter from liability in respect of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in default of any such Underwriter under this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 2 contracts
Samples: Underwriting Agreement (Florida Panthers Holdings Inc), Underwriting Agreement (Florida Panthers Holdings Inc)
Effective Date of Agreement and Termination. This Agreement shall become effective upon the execution and delivery of this Agreement by the parties heretoAgreement. This Agreement may be terminated at any time on or prior to the Closing Date by you the Representatives by written notice to the Company if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is given in the Registration Statement and Prospectus and since the Time of Sale, any Material Adverse Effect occurs, which, in the judgment of the Representatives, makes it impracticable or inadvisable to market the Securities or to enforce contracts for sale of the Securities, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change or development involving a prospective material adverse change (including, without limitation, the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority) in the condition, financial markets or otherwise, of the United States Company and its subsidiaries taken as a whole or elsewherethe earnings, affairs, or any other substantial national business prospects of the Company and its subsidiaries taken as a whole, whether or international calamity or emergency if not arising in the effect ordinary course of such outbreakbusiness, escalation, calamity, crisis or emergency which would, in the judgment of the Representatives, make it impracticable or inadvisable to market the Securities Shares on the terms and in the manner contemplated in the Prospectus, (ii) any outbreak or to enforce contracts for escalation of hostilities or other national or international calamity or crisis (including, without limitation, an act of terrorism) or change in economic conditions or in the sale financial markets of the SecuritiesUnited States or elsewhere that, in the judgment of the Representatives, is material and adverse and would, in the judgment of the Representatives, make it impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus, (iii) any the suspension or material limitation of trading in the Company’s securities generally, or in trading generally in the securities of the Company listed, on the New York Stock Exchange, the NYSE Amex Equities, the American Stock Exchange or The NASDAQ Stock Market or Market, limitation on prices on any setting of minimum prices for trading on such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United Statesexchange, (iv) any declaration of a general banking moratorium material disruption in securities settlement that makes it impracticable to deliver the Shares in the manner contemplated by federalthe Prospectus, New York or Maryland authorities, (v) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your judgment the opinion of the Representatives has a material adverse effect on the financial markets in the United States. If on the Closing Date any one or more of the Underwriters shall fail or refuse to purchase and pay for any of the Shares which it or they have agreed to purchase hereunder on such date and the number of Shares which such defaulting Underwriter or Underwriters, and wouldas the case may be, agreed but failed or refused to purchase is not more than one-tenth of the total number of Shares to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, in the judgment proportion which the number of Shares set forth opposite its name in Schedule I bears to the Representativestotal number of Shares which all the non-defaulting Underwriters, make it impracticable or inadvisable as the case may be, have agreed to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decreepurchase, or in such other promulgation proportion as you may specify, to purchase the Shares which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase on such date; provided that in no event shall the number of Shares which any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made Underwriter has agreed to purchase pursuant to Section 2 hereof be increased pursuant to this Agreement shall remain operative and Section 10 by an amount in full force and effect, and will survive delivery excess of and payment for the Securities, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any one-ninth of the Underwriters or by or on behalf number of Shares without the Company, its officers or directors or any controlling person thereof, (ii) acceptance written consent of the Securities and payment for them hereunder and (iii) termination of this Agreementsuch Underwriter. If this Agreement on the Closing Date any Underwriter or Underwriters shall be terminated by fail or refuse to purchase Shares and the Underwriters pursuant to clauses (i) or (iii) (aggregate number of Shares with respect to the Company’s securities) which such default occurs is more than one-tenth of the second paragraph aggregate number of Shares to be purchased on such date by all Underwriters and arrangements satisfactory to you and the Company for purchase of such Shares are not made within 48 hours after such default, this Section 11 or because of the failure or refusal Agreement will terminate without liability on the part of any non-defaulting Underwriter and the Company to comply with the terms or to fulfill Company. In any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any such case which does not result in termination of this Agreement, either you or the Company shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement and the Prospectus or any other documents or arrangements may be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereofeffected. Except as otherwise provided, Any action taken under this Agreement has been and is made solely for the benefit paragraph shall not relieve any defaulting Underwriter from liability in respect of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in default of any such Underwriter under this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 2 contracts
Samples: Underwriting Agreement (Capital One Financial Corp), Underwriting Agreement (Capital One Financial Corp)
Effective Date of Agreement and Termination. This Agreement shall become effective upon the later of (i) execution and delivery of this Agreement and (ii) when oral notification of the effectiveness of the Registration Statement has been released by the parties heretoCommission. This Agreement may be terminated at any time on or prior to the Closing Date by you by written notice to the Company if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is given in the Registration Statement and the Prospectus, any Material Adverse Effect occursmaterial adverse change or development involving a prospective material adverse change in the condition, whichfinancial or otherwise, of the Company or any of its subsidiaries or the earnings, affairs, or business prospects of the Company or any of its subsidiaries, whether or not arising in the ordinary course of business, which would, in the judgment of the Representativesyour judgment, makes make it impracticable or inadvisable to market the Securities or to enforce contracts for sale of Shares on the Securitiesterms and in the manner contemplated in the Prospectus, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in economic conditions or in the financial markets of the United States or elsewhereelsewhere that, or any other substantial national or international calamity or emergency if the effect of such outbreakin your judgment, escalation, calamity, crisis or emergency is material and adverse and would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to market the Securities or to enforce contracts for Shares on the sale of terms and in the Securitiesmanner contemplated in the Prospectus, (iii) any the suspension or material limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, American Stock Exchange or the NASDAQ Stock Market or any setting of minimum limitation on prices for trading securities on any such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United StatesNational Market System, (iv) the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which in your opinion materially and adversely affects, or will materially and adversely affect, the business or operations of the Company and its subsidiaries, taken as a whole, (v) the declaration of a general banking moratorium by federal, either federal or New York State authorities or Maryland authorities, (vvi) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your judgment opinion has a material adverse effect on the financial markets in the United States, and would, in the judgment of the Representatives, make it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decree, or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made pursuant to this Agreement shall remain operative and in full force and effect, and will survive delivery of and payment for the Securities, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securities) of the second paragraph of this Section 11 or because of the failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any termination of this Agreement, the Company shall be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereof. Except as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 2 contracts
Samples: Underwriting Agreement (Berg Electronics Corp /De/), Underwriting Agreement (Berg Electronics Corp /De/)
Effective Date of Agreement and Termination. This Agreement shall become effective upon the later of (i) execution and delivery of this Agreement and (ii) when notification of the effectiveness of the Registration Statement has been released by the parties heretoCommission. This Agreement may be terminated at any time on or prior to the Closing Date by you by written notice to the Company if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is given in the Registration Statement and the Prospectus, any Material Adverse Effect occursadverse change or development involving a prospective adverse change in the condition, whichfinancial or otherwise, of the Company or any of its subsidiaries or the earnings, affairs, or business prospects of the Company or any of its subsidiaries, whether or not arising in the ordinary course of business, which would, in the judgment of the Representativesyour judgment, makes make it impracticable or inadvisable to market the Securities or to enforce contracts for sale of on the Securitiesterms and in the manner contemplated in the Prospectus, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in economic conditions or in the financial markets of the United States or elsewhereelsewhere that, or any other substantial national or international calamity or emergency if the effect of such outbreakin your judgment, escalation, calamity, crisis or emergency is material and adverse and would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to market the Securities or to enforce contracts for the sale of the Securities, (iii) any suspension or limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, the NASDAQ Stock Market or any setting of minimum prices for trading on such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iv) any declaration of a general banking moratorium by federal, New York or Maryland authorities, (v) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that in your judgment has a material adverse effect on the financial markets in the United States, and would, in the judgment of the Representatives, make it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreementin the Prospectus, (iii) the Pricing Disclosure Package suspension or material If on the Closing Date any one or more of the Underwriters shall fail or refuse to purchase the Securities which it or they have agreed to purchase hereunder on such date and the Prospectus aggregate principal amount of Securities which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to enforce contracts for purchase is not more than one-tenth of the sale total principal amount of the Securities or (vi) the enactmentto be purchased on such date by all Underwriters, publication, decree, or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which wouldeach non-defaulting Underwriter shall be obligated severally, in the judgment proportion which the principal amount of Securities set forth opposite its name in Schedule I bears to the Representativestotal principal amount of Securities which all the non-defaulting Underwriters, as the case may be, have a Material Adverse Effect. The indemnities and contribution provisions and agreed to purchase, or in such other proportion as you may specify, to purchase the other agreementsSecurities which such defaulting Underwriter or Underwriters, representations and warranties as the case may be, agreed but failed or refused to purchase on such date; provided that in no event shall the principal amount of the Company, its officers and directors and the Underwriters set forth in or made Securities which any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased pursuant to this Agreement shall remain operative and Section 9 by an amount in full force and effect, and will survive delivery excess of and payment for the one- ninth of such principal amount of Securities, regardless without the written consent of (i) such Underwriter. If on the Closing Date any investigation, Underwriter or statement as Underwriters shall fail or refuse to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the purchase Securities and payment for them hereunder and (iii) termination the aggregate principal amount of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (Securities with respect to the Company’s securities) which such default occurs is more than one-tenth of the second paragraph aggregate principal amount of Securities to be purchased on such date by all Underwriters and arrangements satisfactory to you and the Company for purchase of such Securities are not made within 48 hours after such default, this Section 11 or because of the failure or refusal Agreement will terminate without liability on the part of any non-defaulting Underwriter and the Company to comply with the terms or to fulfill Company. In any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any such case which does not result in termination of this Agreement, either you or the Company shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement and the Prospectus or any other documents or arrangements may be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereofeffected. Except as otherwise provided, Any action taken under this Agreement has been and is made solely for the benefit paragraph shall not relieve any defaulting Underwriter from liability in respect of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in default of any such Underwriter under this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 2 contracts
Samples: Underwriting Agreement (Usa Waste Services Inc), Underwriting Agreement (Usa Waste Services Inc)
Effective Date of Agreement and Termination. This Agreement shall ------------------------------------------- become effective upon the execution and delivery of this Agreement by the parties heretoAgreement. This Agreement may be terminated at any time on or prior to the Closing Date by you by written notice to the Company if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is given in the Registration Statement and the Prospectus, any Material Adverse Effect occursmaterial adverse change or development involving a prospective material adverse change (including, whichwithout limitation, the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority) in the condition, financial or otherwise, of the Company and its subsidiaries or the earnings, affairs, or business prospects of the Company or any of its subsidiaries taken as a whole, whether or not arising in the ordinary course of business, which would, in the judgment of the Representativesyour judgment, makes make it impracticable or inadvisable to market the Securities or to enforce contracts for sale of on the Securitiesterms and in the manner contemplated in the Prospectus, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in economic conditions or in the financial markets of the United States or elsewhereelsewhere that, or any other substantial national or international calamity or emergency if the effect of such outbreakin your judgment, escalation, calamity, crisis or emergency is material and adverse and would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to market the Securities or to enforce contracts for on the sale of terms and in the Securitiesmanner contemplated in the Prospectus, (iii) any the suspension or material limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, American Stock Exchange or the NASDAQ Stock National Market System, or limitation on prices on any setting of minimum prices for trading on such exchange or markets, National Market System or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iv) any declaration of a general banking moratorium by federal, New York or Maryland authorities, (v) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your judgment opinion has a material adverse effect on the financial markets in the United States. If on the Closing Date any one or more of the Underwriters shall fail or refuse to purchase the Securities which it or they have agreed to purchase hereunder on such date and the aggregate principal amount of Securities which such defaulting Underwriter or Underwriters, and wouldas the case may be, agreed but failed or refused to purchase is not more than one-tenth of the total principal amount of Securities to be purchased on such date by all Underwriters, each non- defaulting Underwriter shall be obligated severally, in the judgment proportion which the principal amount of Securities set forth opposite its name in Schedule I bears to the Representativestotal principal amount of Securities which all the non-defaulting Underwriters, make it impracticable as the case may be, have agreed to purchase, or inadvisable in such other proportion as you may specify, to proceed with the offering, sale or delivery of purchase the Securities which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase on such date; provided that in no event shall the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or principal amount of -------- Securities which any Underwriter has agreed to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decree, or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made purchase pursuant to Section 2 hereof be increased pursuant to this Agreement Section 9 by an amount in excess of one- ninth of such principal amount of Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters shall remain operative and in full force and effect, and will survive delivery of and payment for the Securities, regardless of (i) any investigation, fail or statement as refuse to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the purchase Securities and payment for them hereunder and (iii) termination the aggregate principal amount of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (Securities with respect to the Company’s securities) which such default occurs is more than one-tenth of the second paragraph aggregate principal amount of Securities to be purchased on such date by all Underwriters and arrangements satisfactory to you and the Company for purchase of such Securities are not made within 48 hours after such default, this Section 11 or because of the failure or refusal Agreement will terminate without liability on the part of any non-defaulting Underwriter and the Company to comply with the terms or to fulfill Company. In any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any such case which does not result in termination of this Agreement, either you or the Company shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement and the Prospectus or any other documents or arrangements may be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereofeffected. Except as otherwise provided, Any action taken under this Agreement has been and is made solely for the benefit paragraph shall not relieve any defaulting Underwriter from liability in respect of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in default of any such Underwriter under this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 2 contracts
Samples: Underwriting Agreement (Capital One Financial Corp), Underwriting Agreement (Capital One Financial Corp)
Effective Date of Agreement and Termination. This Agreement shall become effective upon the execution and delivery of this Agreement by the parties heretoAgreement. This Agreement may be terminated at any time on or prior to the Closing Date by you the Representatives by written notice to the Company if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is given in the Registration Statement and the Prospectus and since the Time of Sale, any Material Adverse Effect occurs, which, in the judgment of the Representatives, makes it impracticable or inadvisable to market the Securities or to enforce contracts for sale of the Securities, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change or development involving a prospective material adverse change (including, without limitation, the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority) in the condition, financial markets or otherwise, of the United States Company and its subsidiaries taken as a whole or elsewherethe earnings, affairs, or any other substantial national business prospects of the Company and its subsidiaries taken as a whole, whether or international calamity or emergency if not arising in the effect ordinary course of such outbreakbusiness, escalation, calamity, crisis or emergency which would, in the judgment of the Representatives, make it impracticable or inadvisable to market the Securities on the terms and in the manner contemplated in the Prospectus, (ii) any outbreak or to enforce contracts for escalation of hostilities or other national or international calamity or crisis (including, without limitation, an act of terrorism) or change in economic conditions or in the sale financial markets of the SecuritiesUnited States or elsewhere that, in the judgment of the Representatives, is material and adverse and would, in the judgment of the Representatives, make it impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus, (iii) any the suspension or material limitation of trading in the Company’s securities generally, or in trading generally in the securities of the Company listed, on the New York Stock Exchange, the NYSE Amex Equities, the MKT or The NASDAQ Stock Market or Market, limitation on prices on any setting of minimum prices for trading on such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United Statesexchange, (iv) any declaration of a general banking moratorium material disruption in securities settlement that makes it impracticable to deliver the Securities in the manner contemplated by federalthe Prospectus, New York or Maryland authorities, (v) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your judgment the opinion of the Representatives has a material adverse effect on the financial markets in the United States. If on the Closing Date any one or more of the Underwriters shall fail or refuse to purchase and pay for any of the Securities which it or they have agreed to purchase hereunder on such date and the aggregate principal amount of the Securities which such defaulting Underwriter or Underwriters, and wouldas the case may be, agreed but failed or refused to purchase is not more than one-tenth of the total principal amount of Securities to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, in the judgment proportion which the principal amount of Securities set forth opposite its name in Schedule I bears to the Representativestotal principal amount of Securities which all the non-defaulting Underwriters, make it impracticable as the case may be, have agreed to purchase, or inadvisable in such other proportion as the Representatives may specify, to proceed with the offering, sale or delivery of purchase the Securities which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase on such date; provided that in no event shall the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or principal amount of Securities which any Underwriter has agreed to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decree, or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made purchase pursuant to Section 2 hereof be increased pursuant to this Agreement Section 10 by an amount in excess of one-ninth of such principal amount of Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters shall remain operative and in full force and effect, and will survive delivery of and payment for the Securities, regardless of (i) any investigation, fail or statement as refuse to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the purchase Securities and payment for them hereunder and (iii) termination the aggregate principal amount of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (Securities with respect to the Company’s securities) which such default occurs is more than one-tenth of the second paragraph aggregate principal amount of Securities to be purchased on such date by all Underwriters and arrangements satisfactory to the Representatives and the Company for purchase of such Securities are not made within 48 hours after such default, this Section 11 or because of the failure or refusal Agreement will terminate without liability on the part of any non-defaulting Underwriter and the Company to comply with the terms or to fulfill Company. In any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any such case which does not result in termination of this Agreement, either the Representatives or the Company shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement and the Prospectus or any other documents or arrangements may be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereofeffected. Except as otherwise provided, Any action taken under this Agreement has been and is made solely for the benefit paragraph shall not relieve any defaulting Underwriter from liability in respect of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in default of any such Underwriter under this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 2 contracts
Samples: Underwriting Agreement (Capital One Financial Corp), Underwriting Agreement (Capital One Financial Corp)
Effective Date of Agreement and Termination. This Agreement shall become effective upon the later of (i) the execution and delivery of this Agreement and (ii) when notification of the effectiveness of the Registration Statement has been released by the parties heretoCommission. This Agreement may be terminated at any time on or prior to the Closing Date by you by written notice to the Company if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is given in the Registration Statement and the Prospectus, any Material Adverse Effect occursadverse change or development involving a prospective adverse change in the condition, whichfinancial or otherwise, of the Company or the earnings, affairs, or business prospects of the Company, whether or not arising in the ordinary course of business, which would, in the judgment of the Representativesyour judgment, makes make it impracticable or inadvisable to market the Securities or to enforce contracts for sale of Shares on the Securitiesterms and in the manner contemplated in the Prospectus, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in economic conditions or in the financial markets of the United States or elsewhereelsewhere that, or any other substantial national or international calamity or emergency if the effect of such outbreakin your judgment, escalation, calamity, crisis or emergency is material and adverse and would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to market the Securities or to enforce contracts for Shares on the sale of terms and in the Securitiesmanner contemplated in the Prospectus, (iii) any the suspension or material limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, American Stock Exchange or the NASDAQ Stock National Market System or any setting of minimum limitation on prices for trading securities on any such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United StatesNASDAQ National Market System, (iv) any declaration of a general banking moratorium by federal, New York or Maryland authorities, (v) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that in your judgment has a material adverse effect on the financial markets in the United States, and would, in the judgment of the Representatives, make it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decree, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which wouldin your opinion materially and adversely affects, in or will materially and adversely affect, the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties business or operations of the Company, (v) the declaration of a banking moratorium by either Federal or New York State authorities or (vi) the taking of any action by any Federal, state or local government or agency in respect of its officers and directors monetary or fiscal affairs which in your opinion has a material adverse effect on the financial markets in the United States. If on the Closing Date or on an Option Closing Date, as the case may be, any one or more of the Underwriters shall fail or refuse to purchase the Firm Shares or the Additional Shares, as the case may be, which it or they have agreed to purchase hereunder on such date and the Underwriters aggregate number of Firm Shares or Additional Shares, as the case may be, which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase is not more than one-tenth of the total number of Shares to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, in the proportion which the number of Firm Shares set forth opposite its name in SCHEDULE I bears to the total number of Firm Shares which all the non-defaulting Underwriters, as the case may be, have agreed to purchase, or made in such other proportion as you may specify, to purchase the Firm Shares or the Additional Shares, as the case may be, which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase on such date; PROVIDED, that in no event shall the number of Firm Shares or Additional Shares, as the case may be, which any Underwriter has agreed to purchase pursuant to SECTION 2 hereof be increased pursuant to this Agreement SECTION 9 by an amount in excess of one-ninth of such number of Firm Shares or Additional Shares, as the case may be, without the written consent of such Underwriter. If on the Closing Date or on an Option Closing Date, as the case may be, any Underwriter or Underwriters shall remain operative and in full force and effectfail or refuse to purchase Firm Shares or Additional Shares, as the case may be, and will survive delivery the aggregate number of and payment for Firm Shares or Additional Shares, as the Securitiescase may be, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securities) which such default occurs is more than one-tenth of the second paragraph aggregate number of Shares to be purchased on such date by all Underwriters and arrangements satisfactory to you and the Company for purchase of such Shares are not made within 48 hours after such default, this Section 11 Agreement will terminate without liability on the part of any non-defaulting Underwriter or because of the failure or refusal on the part of the Company to comply with and the terms or to fulfill Selling Securityholder. In any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any such case which does not result in termination of this Agreement, either you or the Company shall have the right to postpone the Closing Date or the applicable Option Closing Date, as the case may be, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement and the Prospectus or any other documents or arrangements may be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereofeffected. Except as otherwise provided, Any action taken under this Agreement has been and is made solely for the benefit paragraph shall not relieve any defaulting Underwriter from liability in respect of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in default of any such Underwriter under this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 2 contracts
Samples: Underwriting Agreement (Net Radio Corp), Underwriting Agreement (Netradio Corp)
Effective Date of Agreement and Termination. This Agreement shall become effective upon the execution and delivery of this Agreement by the parties hereto. This Agreement may be terminated at any time on or prior to the Closing Date by you by notice to the Company if any of the following has occurred: occurred (i) on or after subsequent to the Applicable Timedate of this Agreement, any Material Adverse Effect Change occurs, which, in the judgment of the Representatives, makes it impracticable or inadvisable to market the Securities Notes or to enforce contracts for sale of the SecuritiesNotes, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in the financial markets of the United States or elsewhere, or any other substantial national or international calamity or emergency if the effect of such outbreak, escalation, calamity, crisis or emergency would, in the judgment of the Representatives, make it impracticable or inadvisable to market the Securities Notes or to enforce contracts for the sale of the SecuritiesNotes, (iii) any suspension or limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex EquitiesAmerican Stock Exchange, the NASDAQ Nasdaq Stock Market or in the over-the-counter markets or any setting of minimum prices for trading on such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iv) any declaration of a general banking moratorium by federalFederal, New York or Maryland authorities, (v) the taking of any action by any federalFederal, state or local government or agency in respect of its monetary or fiscal affairs that in your judgment has a material adverse effect on the financial markets in the United States, and would, in the judgment of the Representatives, make it impracticable or inadvisable to proceed with the offering, sale or delivery of market the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or Securities, (vi) the enactment, publication, decree, or other promulgation of any federal Federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect, (vii) the Securities shall have received a rating of less than Ba3 with a stable outlook from Xxxxx’x or less than B+ with a stable outlook from S&P, or (viii) the Securities shall have been placed on any “watch list” for possible downgrading by Xxxxx’x or S&P, provided that in the case of any such “watch list” placement, termination shall be permitted only if such placement would, in the judgment of the Representatives, make it impracticable or inadvisable to market the Securities or to enforce contracts for the sale of the Securities or materially impair the investment quality of the Securities. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its the Guarantors, their respective officers and directors and the Underwriters Initial Purchasers set forth in or made pursuant to this Agreement shall remain operative and in full force and effect, and will survive delivery of and payment for the Securities, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters Initial Purchasers or by or on behalf of the CompanyCompany or any Guarantor, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters Initial Purchasers pursuant to clauses (i) or (iii) (with respect to the Company’s securitiesvii) of the second paragraph of this Section 11 or because of the failure or refusal on the part of the Company or any Guarantor to comply with the terms or to fulfill any of the conditions of this Agreement, the Company agrees and the Guarantors agree to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any termination of this Agreement, the Company and the Guarantors shall be liable for all expenses which they have agreed to pay pursuant to Section 5(e5(j) hereof. Except as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the Company, the UnderwritersGuarantors, the Initial Purchasers, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters Initial Purchasers merely because of such purchase.
Appears in 2 contracts
Samples: Purchase Agreement (HMC Ap Gp LLC), Purchase Agreement (HMC Ihp Holdings LLC)
Effective Date of Agreement and Termination. This Agreement shall become effective upon the execution and delivery of this Agreement by the parties heretoAgreement. This Agreement may be terminated at any time on or prior to the Closing Date by you the Representatives by written notice to the Company if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is given in the Registration Statement and the Prospectus, any Material Adverse Effect occurs, which, in the judgment of the Representatives, makes it impracticable or inadvisable to market the Securities or to enforce contracts for sale of the Securities, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change or development involving a prospective material adverse change (including, without limitation, the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority) in the condition, financial markets or otherwise, of the United States Company and its subsidiaries taken as a whole or elsewherethe earnings, affairs, or any other substantial national business prospects of the Company and its subsidiaries taken as a whole, whether or international calamity or emergency if not arising in the effect ordinary course of such outbreakbusiness, escalation, calamity, crisis or emergency which would, in the judgment of the Representatives, make it impracticable or inadvisable to market the Securities on the terms and in the manner contemplated in the Prospectus, (ii) any outbreak or to enforce contracts for escalation of hostilities or other national or international calamity or crisis (including, without limitation, an act of terrorism) or change in economic conditions or in the sale financial markets of the SecuritiesUnited States or elsewhere that, in the judgment of the Representatives, is material and adverse and would, in the judgment of the Representatives, make it impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus, (iii) any the suspension or material limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, the American Stock Exchange or The NASDAQ Stock Market or Market, limitation on prices on any setting of minimum prices for trading on such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United Statesexchange, (iv) any declaration of a general banking moratorium material disruption in securities settlement that makes it impracticable to deliver the Securities in the manner contemplated by federalthe Prospectus, New York or Maryland authorities, (v) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your judgment the opinion of the Representatives has a material adverse effect on the financial markets in the United States. If on the Closing Date any one or more of the Underwriters shall fail or refuse to purchase and pay for any of the Securities which it or they have agreed to purchase hereunder on such date and the aggregate principal amount of Securities which such defaulting Underwriter or Underwriters, and wouldas the case may be, agreed but failed or refused to purchase is not more than one-tenth of the total principal amount of Securities to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, in the judgment proportion which the principal amount of Securities set forth opposite its name in Schedule I bears to the Representativestotal principal amount of Securities which all the non-defaulting Underwriters, make it impracticable as the case may be, have agreed to purchase, or inadvisable in such other proportion as you may specify, to proceed with the offering, sale or delivery of purchase the Securities which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase on such date; provided that in no event shall the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or principal amount of Securities which any Underwriter has agreed to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decree, or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made purchase pursuant to Section 2 hereof be increased pursuant to this Agreement Section 10 by an amount in excess of one-ninth of such principal amount of Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters shall remain operative and in full force and effect, and will survive delivery of and payment for the Securities, regardless of (i) any investigation, fail or statement as refuse to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the purchase Securities and payment for them hereunder and (iii) termination the aggregate principal amount of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (Securities with respect to the Company’s securities) which such default occurs is more than one-tenth of the second paragraph aggregate principal amount of Securities to be purchased on such date by all Underwriters and arrangements satisfactory to you and the Company for purchase of such Securities are not made within 48 hours after such default, this Section 11 or because of the failure or refusal Agreement will terminate without liability on the part of any non-defaulting Underwriter and the Company to comply with the terms or to fulfill Company. In any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any such case which does not result in termination of this Agreement, either you or the Company shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement and the Prospectus or any other documents or arrangements may be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereofeffected. Except as otherwise provided, Any action taken under this Agreement has been and is made solely for the benefit paragraph shall not relieve any defaulting Underwriter from liability in respect of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in default of any such Underwriter under this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 2 contracts
Samples: Underwriting Agreement (Capital One Financial Corp), Underwriting Agreement (Capital One Financial Corp)
Effective Date of Agreement and Termination. This Agreement shall become effective upon the later of (i) execution and delivery of this Agreement Agreement, (ii) when notification of the effectiveness of the Registration Statement has been released by the parties heretoCommission and (iii) if a post-effective amendment to the Registration Statement has been filed (including any post-effective amendment required to be filed pursuant to Rule 430A) or a new or additional registration statement has been filed (including any new or additional registration statement required to be filed pursuant to Rule 462 under the Act), the effectiveness of such post-effective amendment or new or additional registration statement. Until this Agreement becomes effective as aforesaid, it may be terminated by the Company or the Selling Stockholders by notifying the Underwriters or by the Underwriters by notifying the Company and the Selling Stockholders. This Agreement may be terminated at any time on or after it becomes effective and prior to the Closing Date by you the Representatives by written notice to the Company and the Selling Stockholders if any of the following has occurred: (i) on or after the Applicable Time, any Material Adverse Effect occurs, which, in the judgment of the Representatives, makes it impracticable or inadvisable to market the Securities or to enforce contracts for sale of the Securities, (ii) any new outbreak or material escalation of hostilities hostilities, declaration by the United States of a national emergency or war, or other national or international calamity or crisis or material adverse change in the economic conditions or in the financial markets of the United States or elsewhereelsewhere that, or any other substantial national or international calamity or emergency if in each case, in the effect of such outbreakRepresentatives' judgment, escalation, calamity, crisis or emergency is material and adverse and would, in the judgment of the Representatives' judgment, make it impracticable or inadvisable to market the Securities Shares on the terms and in the manner contemplated in the Prospectus or to enforce contracts for deliver the sale of the SecuritiesShares, (iiiii) any the suspension or material limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, American Stock Exchange or the NASDAQ Stock Nasdaq National Market or any setting of minimum or maximum prices for trading have been fixed, or maximum ranges for prices have been required by any such exchange, the Nasdaq National Market, by such system or order of the Commission, the NASD or any other governmental authority, (iii) the suspension of trading of any securities of the Company on such any exchange or marketsin the over-the-counter market, (iv) the declaration of a banking moratorium by either federal or New York State authorities or (v) a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iv) any declaration of a general banking moratorium by federal, New York or Maryland authorities, (v) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that in your judgment has a material adverse effect . If on the financial markets in Closing Date or on the United StatesOption Closing Date, as the case may be, any one or more of the Underwriters shall fail or refuse to purchase the Firm Shares or Additional Shares, as the case may be, that it or they have agreed to purchase hereunder on such date, and wouldthe aggregate number of Firm Shares or Additional Shares, as the case may be, that such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase is not more than one-tenth of the total number of Firm Shares or Additional Shares, as the case may be, to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, in the judgment proportion that the number of Firm Shares set forth opposite its name in Schedule I bears to the Representativestotal number of Firm Shares that all the non-defaulting Underwriters, make it impracticable or inadvisable as the case may be, have agreed to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decreepurchase, or in such other promulgation proportion as the Representatives may specify, to purchase the Firm Shares or Additional Shares, as the case may be, that such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase on such date; provided that in no event shall the number of Firm Shares or Additional Shares, as the case may be, that any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made Underwriter has agreed to purchase pursuant to Section 2 hereof be increased pursuant to this Agreement Section 10 by an amount in excess of one-ninth of such number of Firm Shares or Additional Shares, as the case may be, without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters shall remain operative and in full force and effectfail or refuse to purchase Firm Shares, and will survive delivery the aggregate number of and payment for the Securities, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (Firm Shares with respect to the Company’s securities) which such default occurs is more than one-tenth of the second paragraph aggregate number of Firm Shares to be purchased on such date by all Underwriters, and arrangements satisfactory to the Underwriters and the Selling Stockholders for purchase of such Firm Shares are not made within 48 hours after such default, this Section 11 or because of the failure or refusal Agreement will terminate without liability on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreementnon-defaulting Underwriter, the Company agrees to reimburse you for all out-of-pocket expenses incurred by youor the Selling Stockholders. Notwithstanding In any such case that does not result in termination of this Agreement, either the Company Representatives or the Selling Stockholders shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement and the Prospectus or any other documents or arrangements may be liable for all expenses effected. If, on an Option Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase Additional Shares and the aggregate number of Additional Shares with respect to which they have agreed such default occurs is more than one-tenth of the aggregate number of Additional Shares to pay pursuant to Section 5(e) hereof. Except as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the Companypurchased on such date, the Underwriters, non-defaulting Underwriters shall have the option to (i) terminate their obligation hereunder to purchase such Additional Shares or (ii) purchase not less than the number of Additional Shares that such non-defaulting Underwriters would have been obligated to purchase on such date in the absence of such default. Any action taken under this paragraph shall not relieve any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided defaulting Underwriter from liability in respect of any default of any such Underwriter under this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 2 contracts
Samples: Underwriting Agreement (Amphenol Corp /De/), Underwriting Agreement (Amphenol Corp /De/)
Effective Date of Agreement and Termination. This Agreement ------------------------------------------- shall become effective upon the later of (i) execution and delivery of this Agreement and (ii) when notification of the effectiveness of the Registration Statements has been released by the parties heretoCommission. This Agreement may be terminated at any time on or prior to the Closing Date by you by written notice to the Company Trust, the Company, Luckygold and Xx. Xx if any of the following has occurred: (i) on since the respective dates as of which information is given in the Registration Statements and the Prospectuses (exclusive of any amendments or after supplements thereto subsequent to the Applicable Timedate of this Agreement), any Material Adverse Effect occurschange or development involving a prospective change in the condition, whichfinancial or otherwise, of the Trust or the Company and its subsidiaries, taken as a whole, or the earnings, affairs, or business prospects of the Trust or the Company and its subsidiaries, taken as a whole, whether or not arising in the ordinary course of business, that, in the our judgment of the Representativesis material and adverse and would, makes in your judgment, make it impracticable or inadvisable to market the Securities or to enforce contracts for sale of on the Securitiesterms and in the manner contemplated in the Prospectuses, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in economic conditions or in the financial markets of the United States or elsewhereelsewhere that, or any other substantial national or international calamity or emergency if the effect of such outbreakin your judgment, escalation, calamity, crisis or emergency is material and adverse and would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to market the Securities or to enforce contracts for on the sale of terms and in the Securitiesmanner contemplated in the Prospectuses, (iii) any the suspension or material limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, American Stock Exchange or the NASDAQ Stock Nasdaq National Market or any setting of minimum limitation on prices for trading securities on any such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United StatesNational Market, (iv) any the declaration of a general banking moratorium by federal, either federal or New York State authorities or Maryland authorities, (v) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your judgment has a material adverse effect on the financial markets in the United States. If on the Closing Date or on an Option Closing Date, as the case may be, any one or more of the Underwriters shall fail or refuse to purchase the Firm Securities or Additional Securities, as the case may be, which it or they have agreed to purchase hereunder on such date and wouldthe aggregate number of Firm Securities or Additional Securities, as the case may be, which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase is not more than one-tenth of the total number of TrENDS to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, in the judgment proportion which the number of Firm Securities set forth opposite its name in Schedule I bears to the Representativestotal number of Firm Securities which all the non-defaulting Underwriters, make it impracticable as the case may be, have agreed to purchase, or inadvisable in such other proportion as you may specify, to proceed with purchase the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Firm Securities or (vi) Additional Securities, as the enactmentcase may be, publicationwhich such defaulting Underwriter or Underwriters, decreeas the case may be, agreed but failed or other promulgation refused to purchase on such date; provided that in no event shall the -------- number of Firm Securities or Additional Securities, as the case may be, which any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made Underwriter has agreed to purchase pursuant to Section 2 hereof be increased pursuant to this Agreement Section 13 by an amount in excess of one-ninth of such number of Firm Securities or Additional Securities, as the case may be, without the written consent of such Underwriter. If on the Closing Date or on an Option Closing Date, as the case may be, any Underwriter or Underwriters shall remain operative and in full force and effectfail or refuse to purchase Firm Securities, or Additional Securities, as the case may be, and will survive delivery the aggregate number of and payment for the Firm Securities or Additional Securities, regardless of (i) any investigationas the case may be, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securities) which such default occurs is more than one-tenth of the second paragraph aggregate number of TrENDS to be purchased on such date by all Underwriters and arrangements satisfactory to you and Luckygold for purchase of such TrENDS are not made within 48 hours after such default, this Section 11 or because of the failure or refusal Agreement will terminate without liability on the part of the Company to comply with the terms any non-defaulting Underwriter, Luckygold or to fulfill Xx. Xx . In any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any such case which does not result in termination of this Agreement, either you, Luckygold or Xx. Xx shall have the Company right to postpone the Closing Date or the applicable Option Closing Date, as the case may be, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statements and the Prospectuses or any other documents or arrangements may be effected. Any action taken under this paragraph shall be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereof. Except as otherwise provided, this Agreement has been and is made solely for the benefit not relieve any defaulting Underwriter from liability in respect of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in default of any such Underwriter under this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement shall become effective upon the execution and delivery of this Agreement by the parties heretohereof. This Agreement may be terminated at any time on or prior to the Closing Date by you by notice to the Issuer and the Company if any of the following has occurred: (i) on or after subsequent to the Applicable Timedate information is provided in the Offering Memorandum, any Material Adverse Effect occurs, Change which, in your judgment, materially impairs the judgment investment quality of any of the Representatives, makes it impracticable or inadvisable to market the Securities or to enforce contracts for sale of the SecuritiesNotes, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in the financial markets of the United States or elsewhere, or any other substantial national or international calamity or emergency if the effect of such outbreak, escalation, calamity, crisis crisis, material adverse change or emergency would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to market any of the Securities Notes or to enforce contracts for the sale of any of the SecuritiesNotes, (iii) any suspension or limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, Exchange or in the NYSE Amex Equities, the NASDAQ Stock Nasdaq National Market System or any setting of minimum prices for trading on such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iv) any declaration of a general banking moratorium by federal, either federal or New York or Maryland authorities, (v) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that in your judgment has a material adverse effect on the financial markets in the United States, and would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to proceed with the offering, sale or delivery market any of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus Notes or to enforce contracts for the sale of any of the Securities or Notes, (vi) the enactment, publication, decree, or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which wouldwhich, in the judgment of the Representativesyour judgment, would have a Material Adverse Effect, or (vii) any securities of the Issuer or the Company or any of their subsidiaries shall have been downgraded or placed on any "watch list" for possible downgrading by any nationally recognized statistical rating organization. The indemnities and contribution provisions and the other agreements, representations and warranties of the Issuer, the Company, its PEI their respective officers and directors and of the Underwriters Initial Purchaser set forth in or made pursuant to this Agreement shall remain operative and in full force and effect, and will survive delivery of and payment for the SecuritiesNotes regardless, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters Initial Purchaser or by or on behalf of the Issuer, the Company, its PEI, the officers or directors of the Issuer, the Company, PEI or any the controlling person thereofof the Issuer, the Company or PEI, (ii) acceptance of the Securities Notes and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters Initial Purchaser pursuant to clauses clause (i) or (iii) (with respect to the Company’s securities) of the second paragraph of this Section 11 9 or because of the failure or refusal on the part of the Issuer, the Company or PEI to comply with the terms or to fulfill any of the conditions of this Agreement, the Issuer, the Company agrees and PEI agree jointly and severally to reimburse you for all out-of-pocket expenses (including the fees and disbursements of counsel) incurred by you, except as otherwise agreed in writing. Notwithstanding any termination of this Agreement, the Issuer, the Company and PEI shall be jointly and severally liable for all expenses which they have agreed to pay pursuant to Section 5(e4(f) hereof. If the transactions contemplated hereby are consummated, each of the parties shall pay its own expenses in connection with the offering and sale of the Notes, including the costs and expenses of its counsel, except as otherwise provided in Section 4(f) hereof. Except as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the Issuer, the Company, PEI, the UnderwritersInitial Purchaser, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “"successors and assigns” " shall not include a purchaser of any of the Securities Notes from any of the Underwriters Initial Purchaser merely because of such purchase.
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement shall become effective upon at the execution time that the Company and delivery of the Initial Purchasers execute this Agreement. The Initial Purchasers may terminate this Agreement by the parties hereto. This Agreement may be terminated at any time on or prior to the Closing Date by you by written notice to the Company if any of the following has occurred: :
(ia) on or after since the Applicable Timerespective dates as of which information is given in the Offering Documents, any Material Adverse Effect occursadverse change or development involving a prospective adverse change, whichwhether or not arising in the ordinary course of business, which would, in the judgment of the RepresentativesInitial Purchasers' judgment, makes make it impracticable or inadvisable to market the Securities or to enforce contracts for sale of Series A Notes on the Securities, terms and in the manner contemplated in the Offering Documents;
(iib) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in the financial markets of the United States or elsewhereeconomic conditions, or any other substantial national or international calamity or emergency if the effect of such outbreak, escalation, calamity, crisis or emergency change on the financial markets of the United States or elsewhere would, in the judgment of the RepresentativesInitial Purchasers' judgment, make it impracticable or inadvisable to market the Securities or to enforce contracts for Series A Notes on the sale of terms and in the Securities, manner contemplated in the Offering Documents;
(iiic) any the suspension or material limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, American Stock Exchange or the NASDAQ Stock Nasdaq National Market or any setting of minimum limitation on prices for trading securities on any such exchange exchange;
(d) the enactment, publication, decree or marketsother promulgation of any federal or state statute, regulation, rule or a material disruption has occurred in commercial banking order of any court or securities settlement or clearance services other governmental authority which in the United States, Initial Purchasers' opinion causes or could cause a Material Adverse Effect;
(ive) any the declaration of a general banking moratorium by federal, either federal or New York or Maryland State authorities, ;
(vf) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your judgment the Initial Purchasers' opinion has a material adverse effect on the financial markets in the United States; or
(g) any of the Company's securities shall have been downgraded or placed on any "watch list" for possible downgrading by any nationally recognized statistical rating organization, and provided that in the case of such "watch list" placement, termination shall be permitted only if such placement would, in the judgment of the RepresentativesInitial Purchasers, make it impracticable or inadvisable to proceed with market the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus Series A Notes or to enforce contracts for the sale of the Securities Series A Notes or (vi) materially impair the enactment, publication, decree, or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment investment quality of the RepresentativesSeries A Notes. If on the Closing Date, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties either of the CompanyInitial Purchasers shall fail or refuse to purchase the Series A Notes which it has agreed to purchase hereunder on such date and arrangements satisfactory to the Company for purchase of such Series A Notes are not made within 48 hours after such default, its officers and directors and the Underwriters set forth in or made pursuant to this Agreement shall remain operative and in full force and effect, and will survive delivery of and payment for the Securities, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securities) of the second paragraph of this Section 11 or because of the failure or refusal terminate without liability on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, the Company agrees to reimburse you for all outnon-of-pocket expenses incurred by youdefaulting Initial Purchaser. Notwithstanding In any such case that does not result in termination of this Agreement, the Company shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the required changes, if any, in the Offering Memorandum or any other documents or arrangements may be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereofeffected. Except as otherwise provided, Any action taken under this Agreement has been and is made solely for the benefit paragraph shall not relieve any defaulting Initial Purchaser from liability in respect of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in default by it under this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Samples: Purchase Agreement (Gfsi Inc)
Effective Date of Agreement and Termination. This Agreement shall become effective upon the later of (i) execution and delivery of this Agreement and (ii) when notification of the effectiveness of the Registration Statement has been released by the parties heretoCommission. This Agreement may be terminated at any time on or prior to the Closing Date by you by written notice to the Company Sellers if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is given in the Registration Statement and the Prospectus, any Material Adverse Effect occursmaterial adverse change or development involving a prospective material adverse change in the condition, whichfinancial or otherwise, of the Company and its subsidiaries, taken as a whole, or the earnings, affairs, or business prospects of the Company and its subsidiaries, taken as a whole, whether or not arising in the ordinary course of business, which would, in the judgment of the Representativesyour judgment, makes make it impracticable or inadvisable to market the Securities or to enforce contracts for sale of Shares on the Securitiesterms and in the manner contemplated in the Prospectus, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in economic conditions or in the financial markets of the United States or elsewhereelsewhere that, or any other substantial national or international calamity or emergency if the effect of such outbreakin your judgment, escalation, calamity, crisis or emergency is material and adverse and would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to market the Securities or to enforce contracts for Shares on the sale of terms and in the Securitiesmanner contemplated in the Prospectus, (iii) any the suspension or material limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, American Stock Exchange or the NASDAQ Stock National Market or any setting of minimum limitation on prices for trading securities on any such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United StatesNational Market System, (iv) the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which in your opinion materially and adversely affects, or will materially and adversely affect, the business or operations of the Company or any subsidiary, (v) the declaration of a general banking moratorium by federal, either federal or New York State authorities or Maryland authorities, (vvi) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your judgment opinion has a material adverse effect on the financial markets in the United States. If on the Closing Date or on an Option Closing Date, as the case may be, any one or more of the Underwriters shall fail or refuse to purchase the Firm Shares or Additional Shares, as the case may be, which it or they have agreed to purchase hereunder on such date and wouldthe aggregate number of Firm Shares or Additional Shares, as the case may be, which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase is not more than one-tenth of the total number of Shares to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, in the judgment proportion which the number of Firm Shares set forth opposite its name in Schedule I bears to the Representativestotal number of Firm Shares which all the non-defaulting Underwriters, make it impracticable or inadvisable as the case may be, have agreed to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decreepurchase, or in such other promulgation proportion as you may specify, to purchase the Firm Shares or Additional Shares, as the case may be, which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase on such date; provided that in no event shall the number of Firm Shares or Additional Shares, as the case may be, which any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made Underwriter has agreed to purchase pursuant to Section 2 hereof be increased pursuant to this Agreement Section 10 by an amount in excess of one-ninth of such number of Firm Shares or Additional Shares, as the case may be, without the written consent of such Underwriter. If on the Closing Date or on an Option Closing Date, as the case may be, any Underwriter or Underwriters shall remain operative and in full force and effectfail or refuse to purchase Firm Shares, or Additional Shares, as the case may be, and will survive delivery the aggregate number of and payment for Firm Shares or Additional Shares, as the Securitiescase may be, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securities) which such default occurs is more than one-tenth of the second paragraph aggregate number of Shares to be purchased on such date by all Underwriters and arrangements satisfactory to you and the applicable Sellers for purchase of such Shares are not made within 48 hours after such default, this Section 11 or because of the failure or refusal Agreement will terminate without liability on the part of any non-defaulting Underwriter and the Company to comply with the terms or to fulfill applicable Sellers. In any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any such case which does not result in termination of this Agreement, either you or the Company Sellers shall have the right to postpone the Closing Date or the applicable Option Closing Date, as the case may be, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement and the Prospectus or any other documents or arrangements may be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereofeffected. Except as otherwise provided, Any action taken under this Agreement has been and is made solely for the benefit paragraph shall not relieve any defaulting Underwriter from liability in respect of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in default of any such Underwriter under this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement shall become effective upon the later of (i) execution and delivery of this Agreement and (ii) when notification of the effectiveness of the Registration Statement has been released by the parties heretoCommission. This Agreement may be terminated at any time on or prior to the Closing Date by you by written notice to the Company if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is given in the Registration Statement and the Prospectus, any Material Adverse Effect occursadverse change or development involving a prospective adverse change in the condition, whichfinancial or otherwise, of the Company, any Principal Subsidiary or the earnings, affairs, or business prospects of the Company or any Principal Subsidiary, whether or not arising in the ordinary course of business, which would, in the judgment of the Representativesyour reasonable judgment, makes make it impracticable or inadvisable to market the Securities or to enforce contracts for sale of Notes on the Securitiesterms and in the manner contemplated in the Prospectus, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in the financial markets of the United States or elsewhereeconomic conditions, or any other substantial national or international calamity or emergency if the effect of such outbreak, escalation, calamity, crisis or emergency change on the financial markets of the United States or elsewhere would, in the judgment of the Representativesyour reasonable judgment, make it impracticable or inadvisable to market the Securities or to enforce contracts for Notes on the sale of terms and in the Securitiesmanner contemplated in the Prospectus, (iii) any the suspension or material limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, American Stock Exchange or the NASDAQ Stock National Market System or any setting of minimum limitation on prices for trading securities on any such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United StatesNational Market System, (iv) the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which in your reasonable judgment materially and adversely affects, or will materially and adversely affect, the business or operations of the Company, (v) the declaration of a general banking moratorium by federal, either federal or New York State authorities or Maryland authorities, (vvi) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your reasonable judgment has a material adverse effect on the financial markets in the United States. If on the Closing Date any one or more of the Underwriters shall fail or refuse to purchase the Notes which it or they have agreed to purchase hereunder on such date and the aggregate principal amount of Notes which such defaulting Underwriter or Underwriters, and wouldas the case may be, agreed but failed or refused to purchase is not more than one-tenth of the total principal amount of Notes to be purchased by all Underwriters, each non-defaulting Underwriter shall be obligated severally, in the judgment proportion which the principal amount of Notes set forth opposite its name in Schedule I bears to the Representativesaggregate principal amount of Notes which all the non-defaulting Underwriters, make it impracticable or inadvisable as the case may be, have agreed to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decreepurchase, or in such other promulgation proportion as you may specify, to purchase the Notes which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase on such date; provided that in no event shall the principal amount of Notes which any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made Underwriter has agreed to purchase pursuant to Section 2 hereof be increased pursuant to this Agreement shall remain operative and Section 9 by an amount in full force and effect, and will survive delivery excess of and payment for one-ninth of such principal amount of Notes without the Securities, regardless written consent of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreementsuch Underwriter. If this Agreement on the Closing Date any Underwriter or Underwriters shall be terminated by fail or refuse to purchase Notes and the Underwriters pursuant to clauses (i) or (iii) (aggregate principal amount of Notes with respect to the Company’s securities) which such default occurs is more than one-tenth of the second paragraph aggregate principal amount of Notes to be purchased on such date by all Underwriters in the event of a default by a Underwriter and arrangements satisfactory to you and the Company for purchase of such Notes are not made within 48 hours after such default, this Section 11 or because of the failure or refusal Agreement will terminate without liability on the part of any non-defaulting Underwriter and the Company to comply with the terms or to fulfill Company. In any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any such case which does not result in termination of this Agreement, either you or the Company shall have the right to postpone the Closing Date but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement and the Prospectus or any other documents or arrangements may be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereofeffected. Except as otherwise provided, Any action taken under this Agreement has been and is made solely for the benefit paragraph shall not relieve any defaulting Underwriter from liability in respect of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in default of any such Underwriter under this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement shall become effective upon the execution and delivery of this Agreement by the parties hereto. This Agreement may be terminated at any time on or prior to the Closing Date by you by notice to the Company if any of the following has occurred: (i) on or after the Applicable Time, any Material Adverse Effect occurs, which, in the judgment of the Representatives, makes it impracticable or inadvisable to market the Securities or to enforce contracts for sale of the Securities, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in the financial markets of the United States or elsewhere, or any other substantial national or international calamity or emergency if the effect of such outbreak, escalation, calamity, crisis or emergency would, in the judgment of the Representatives, make it impracticable or inadvisable to market the Securities or to enforce contracts for the sale of the Securities, (iii) any suspension or limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, the NASDAQ Stock Market or in the over-the-counter markets or any setting of minimum prices for trading on such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iv) any declaration of a general banking moratorium by federal, New York or Maryland authorities, (v) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that in your judgment has a material adverse effect on the financial markets in the United States, and would, in the judgment of the Representatives, make it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decree, or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made pursuant to this Agreement shall remain operative and in full force and effect, and will survive delivery of and payment for the Securities, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securities) of the second paragraph of this Section 11 or because of the failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any termination of this Agreement, the Company shall be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereof. Except as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Samples: Underwriting Agreement (Host Hotels & Resorts L.P.)
Effective Date of Agreement and Termination. This Agreement shall become effective upon the execution and delivery of this Agreement by the parties heretohereof. This Agreement may be terminated at any time on or prior to the Closing Date by you by notice to the Company if any of the following has occurred: (i) on or after subsequent to the Applicable Timedate information is provided in the Offering Circular, any Material Adverse Effect occurs, Change which, in your judgment, materially impairs the judgment investment quality of any of the Representatives, makes it impracticable or inadvisable to market the Securities or to enforce contracts for sale of the SecuritiesSeries C Senior Subordinated Notes, (ii) any new outbreak or material escalation of hostilities or or, other national or international calamity or crisis or material adverse change in the financial markets of the United States or elsewhere, or any other substantial national or international calamity or emergency if the effect of such outbreak, escalation, calamity, crisis or emergency would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to market any of the Securities Series C Senior Subordinated Notes or to enforce contracts for the sale of any of the SecuritiesSeries C Senior Subordinated Notes, (iii) any suspension or limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, Exchange or in the NYSE Amex Equities, the NASDAQ Stock Market over-the-counter markets or any setting of minimum prices for trading on such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iv) any declaration of a general banking moratorium by federal, either federal or New York or Maryland authorities, (v) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that in your judgment has a material adverse effect on the financial markets in the United States, and would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to proceed with the offering, sale or delivery market any of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus Series C Senior Subordinated Notes or to enforce contracts for the sale of any of the Securities or Series C Senior Subordinated Notes, (vi) the enactment, publication, decree, or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which wouldwhich, in your judgment, materially and adversely affects or will materially and adversely affect the judgment business or operations of the RepresentativesCompany and the Subsidiaries, taken as a whole, or (vii) any securities of the Company or any of the Subsidiaries shall have a Material Adverse Effectbeen downgraded or placed on any "watch list" for possible downgrading by any nationally recognized statistical rating organization. The indemnities and contribution provisions and the other agreements, representations and warranties of the CompanyCompany and the Guarantor, its their officers and directors and the Underwriters of you set forth in or made pursuant to this Agreement shall remain operative and in full force and effect, and will survive delivery of and payment for the SecuritiesSeries C Senior Subordinated Notes, regardless of (i) any investigation, or statement as to the results thereof, made by or on your behalf of any of the Underwriters or by or on behalf of the Company, its the officers or directors of the Company or any controlling person thereofof the Company, (ii) acceptance of the Securities Series C Senior Subordinated Notes and payment for them hereunder and (iii) termination of this Agreement. 20 If this Agreement shall be terminated by the Underwriters you pursuant to clauses (i) or (iii) (with respect to the Company’s securitiesvii) of the second paragraph of this Section 11 8 or because of the failure or refusal on the part of the Company or the Guarantor to comply with the terms or to fulfill any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses (including the reasonable fees and disbursements of counsel) incurred by you. Notwithstanding any termination of this Agreement, the Company shall be liable for all expenses which they have it has agreed to pay pursuant to Section 5(e4(f) hereof. Except as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the Company, the UnderwritersGuarantor, you, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “"successors and assigns” " shall not include a purchaser of any of the Securities Series C Senior Subordinated Notes from any of the Underwriters you merely because of such purchase.
Appears in 1 contract
Effective Date of Agreement and Termination. (a) This Agreement shall become effective upon the execution and delivery of this Agreement by the parties hereto. .
(b) This Agreement may be terminated at any time on or prior to the Closing Date by you by notice to the Company if any of the following has occurred: (i) on subsequent to the date of the Offering Memorandum or after the Applicable Timeof this Agreement, any Material Adverse Effect occurs, Change which, in the judgment of the RepresentativesInitial Purchaser, makes it impracticable or inadvisable to market materially impairs the Securities or to enforce contracts for sale investment quality of the Securities, Series A Notes; (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in the financial markets of the United States or elsewhereStates, or any other substantial national or international calamity or emergency if the effect of such outbreak, escalation, calamity, crisis or emergency would, in the judgment of the RepresentativesInitial Purchaser, make it impracticable or inadvisable to market the Securities Series A Notes or to enforce contracts for the sale of the Securities, Series A Notes; (iii) any suspension or limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, American Stock Exchange or in the NASDAQ Stock Market over-the-counter markets or any setting of minimum prices for trading on such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, ; (iv) any declaration of a general banking moratorium by federal, either federal or New York or Maryland authorities, ; (v) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that that, in your the judgment of the Initial Purchaser, has a material adverse effect on the financial markets in the United States, States and would, in the judgment of the RepresentativesInitial Purchaser, make it impracticable or inadvisable to proceed with market the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus Series A Notes or to enforce contracts for the sale of the Securities Series A Notes; or (vi) the enactment, publication, decree, or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which wouldwhich, in the judgment of the RepresentativesInitial Purchaser, have a Material Adverse Effect. materially and adversely affect, or will materially and adversely affect, the business or operations of the Company.
(c) The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its respective officers and directors and of the Underwriters Initial Purchaser set forth in or made pursuant to this Agreement shall remain operative and in full force and effect, and will survive delivery of and payment for the SecuritiesSeries A Notes, regardless regardless, of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters Initial Purchaser or by or on behalf of the Company, its the officers or directors of the Company or any controlling person thereofof the Company, (ii) acceptance of the Securities Series A Notes and payment for them hereunder and (iii) termination of this Agreement. .
(d) If this Agreement shall be terminated by the Underwriters Initial Purchaser pursuant to clauses clause (i) or of paragraph (iiib) (with respect to the Company’s securities) of the second paragraph of this Section 11 9 or because of the failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses (including the fees and disbursements of counsel) incurred by you. Notwithstanding any termination of this Agreement, the Company shall be liable for all expenses which they have it has agreed to pay pursuant to Section 5(e4(f) hereof. .
(e) Except as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the Company, the UnderwritersInitial Purchaser, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “"successors and assigns” " shall not include a purchaser of any of the Securities Series A Notes from any of the Underwriters Initial Purchaser merely because of such purchase.
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement ------------------------------------------- shall become effective upon the later of (i) execution and delivery of this Agreement and (ii) when notification of the effectiveness of the Registration Statement has been released by the parties heretoCommission. This Agreement may be terminated at any time on or prior to the Closing Date by you by written notice to the Company if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is given in the Prospectus, any Material Adverse Effect occursmaterial adverse change or development involving a prospective material adverse change in the condition, whichfinancial or otherwise, or the earnings, affairs, or business prospects of the Company and its subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of business, which would, in the judgment of the Representativesyour judgment, makes make it impracticable or inadvisable to market the Securities or to enforce contracts for sale of on the Securitiesterms and in the manner contemplated in the Prospectus, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in the financial markets of the United States or elsewhereeconomic conditions, or any other substantial national or international calamity or emergency if the effect of such outbreak, escalation, calamity, crisis or emergency change on the financial markets of the United States or elsewhere would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to market the Securities or to enforce contracts for on the sale of terms and in the Securitiesmanner contemplated in the Prospectus, (iii) any the suspension or material limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, American Stock Exchange or the NASDAQ Stock National Market System or any setting of minimum limitation on prices for trading securities on any such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United StatesNASDAQ National Market System, (iv) trading of any securities of the Company shall have been suspended on any exchange, (v) the declaration of a general banking moratorium by either federal, California or New York State authorities or Maryland authorities, (vvi) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your judgment has a material adverse effect on the financial markets in the United States, States and would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to proceed with the offering, sale or delivery of market the Securities on the terms and in the manner contemplated by this Agreementthe Prospectus. If on the Closing Date, any one or more of the Pricing Disclosure Package Underwriters shall fail or refuse to purchase the Securities which it or they have agreed to purchase hereunder on such date and the Prospectus aggregate principal amount of Securities which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to enforce contracts for the sale purchase is not more than one-tenth of the aggregate principal amount of Securities or (vi) the enactmentto be purchased by all Underwriters on such date, publication, decree, or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which wouldeach non-defaulting Underwriter shall be obligated severally, in the judgment proportion which the aggregate principal amount of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters Securities set forth opposite its name in Schedule I bears to the aggregate principal amount of Securities which all the non-defaulting Underwriters have agreed to purchase, or made in such other proportion as you may specify, to purchase the Securities which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase on such date; provided that in no event shall the aggregate principal -------- amount of Securities which any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased pursuant to this Agreement Section 9 by an amount in excess of one-ninth of such aggregate principal amount of Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters shall remain operative and in full force and effect, and will survive delivery of and payment for the Securities, regardless of (i) any investigation, fail or statement as refuse to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the purchase Securities and payment for them hereunder and (iii) termination the aggregate principal amount of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (Securities with respect to the Company’s securities) which such default occurs is more than one-tenth of the second paragraph aggregate principal amount of Securities to be purchased on such date by all Underwriters and arrangements satisfactory to you and the Company for purchase of such Securities are not made within 48 hours after such default, this Section 11 or because of the failure or refusal Agreement will terminate without liability on the part of any non- defaulting Underwriter and the Company to comply with the terms or to fulfill Company. In any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any such case which does not result in termination of this Agreement, either you or the Company shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement and the Prospectus or any other docu- ments or arrangements may be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereofeffected. Except as otherwise provided, Any action taken under this Agreement has been and is made solely for the benefit paragraph shall not relieve any defaulting Underwriter from liability in respect of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in default of any such Underwriter under this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement shall become effective upon the execution and delivery of this Agreement by the parties heretohereof. This Agreement may be terminated at any time on or prior to the Closing Date by you by notice to the Company if any of the following has occurred: (i) on or after subsequent to the Applicable Timedate information is provided in the Offering Memorandum, any Material Adverse Effect occurs, Change which, in your judgment, materially impairs the judgment investment quality of the Representatives, makes it impracticable or inadvisable to market the Securities or to enforce contracts for sale of the SecuritiesSeries C Notes, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in the financial markets of the United States or elsewhere, or any other substantial national or international calamity or emergency if the effect of such outbreak, escalation, calamity, crisis crisis, material adverse change or emergency would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to market any of the Securities Series C Notes or to enforce contracts for the sale of any of the SecuritiesSeries C Notes, (iii) any suspension or limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, Exchange or in the NYSE Amex Equities, the NASDAQ Stock Market over-the-counter markets or any setting of minimum prices for trading on such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iv) any declaration of a general banking moratorium by federal, either federal or New York or Maryland authorities, (v) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that in your judgment has a material adverse effect on the financial markets in the United States, and would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to proceed with the offering, sale or delivery market any of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus Series C Notes or to enforce contracts for the sale of any of the Securities or Series C Notes, (vi) the enactment, publication, decree, or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which wouldwhich, in the judgment of the Representativesyour judgment, would have a Material Adverse Effect, or (vii) any securities of the Company or any of its subsidiaries shall have been downgraded or placed on any "watch list" for possible downgrading by any nationally recognized statistical rating organization. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and of the Underwriters Purchaser set forth in or made pursuant to this Agreement shall remain operative and in full force and effect, and will survive delivery of and payment for the SecuritiesSeries C Notes, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any either of the Underwriters Purchaser or by or on behalf of the Company, its the officers or directors of the Company or any controlling person thereofof the Company, (ii) acceptance of the Securities Series C Notes and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters Purchaser pursuant to clauses clause (i) or (iii) (with respect to the Company’s securitiesvii) of the second paragraph of this Section 11 9 or because of the failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses (including the fees and disbursements of counsel) incurred by you. Notwithstanding any termination of this Agreement, the Company shall be liable for all expenses which they have it has agreed to pay pursuant to Section 5(e4(f) hereof. Except as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the Company, the UnderwritersPurchaser, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “"successors and assigns” " shall not include a purchaser of any of the Securities Series C Notes from any of the Underwriters Purchaser merely because of such purchase.
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement shall become effective upon the execution and delivery of this Agreement by the parties heretoAgreement. This Agreement may be terminated at any time on or prior to the Closing Date by you [you][the Representatives] by written notice to the Company if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is given in the Registration Statement and the Prospectus, any Material Adverse Effect occursmaterial adverse change or development involving a prospective material adverse change (including, whichwithout limitation, the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority) in the condition, financial or otherwise, of the Company and its subsidiaries taken as a whole or the earnings, affairs, or business prospects of the Company and its subsidiaries taken as a whole, whether or not arising in the ordinary course of business, which would, [in your judgment][in the judgment of the Representatives], makes make it impracticable or inadvisable to market the Securities or to enforce contracts for sale of on the Securitiesterms and in the manner contemplated in the Prospectus, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis (including, without limitation, an act of terrorism) or material adverse change in economic conditions or in the financial markets of the United States or elsewhereelsewhere that, or any other substantial national or international calamity or emergency if the effect of such outbreak, escalation, calamity, crisis or emergency would, [in your judgment][in the judgment of the Representatives], is material and adverse and would, [in your judgment][in the judgment of the Representatives], make it impracticable or inadvisable to market the Securities or to enforce contracts for on the sale of terms and in the Securitiesmanner contemplated in the Prospectus, (iii) any the suspension or material limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, American Stock Exchange or the NASDAQ Stock National Market or System, limitation on prices on any setting of minimum prices for trading on such exchange or markets, or National Market System (iv) a material disruption has occurred in commercial banking or securities settlement or clearance services that makes it impracticable to deliver the Securities in the United Statesmanner contemplated by the Prospectus, (iv) any declaration of a general banking moratorium by federal, New York or Maryland authorities, (v) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which [in your judgment opinion][in the opinion of the Representatives] has a material adverse effect on the financial markets in the United States, and would, in the judgment of the Representatives, make it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decree, or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made pursuant to this Agreement shall remain operative and in full force and effect, and will survive delivery of and payment for the Securities, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securities) of the second paragraph of this Section 11 or because of the failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any termination of this Agreement, the Company shall be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereof. Except as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement shall become effective upon the execution and delivery of this Agreement by the parties hereto. This Agreement may be terminated at any time on or prior to the Closing Date by you by written notice to the Company and the Selling Shareholder if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is given in the Registration Statement and the Prospectus, except as disclosed in the Prospectus, any Material Adverse Effect occursadverse change or development involving a prospective adverse change in the condition, whichfinancial or otherwise, of the Company and its subsidiaries taken as a whole or the earnings, affairs, or business prospects of the Company and its subsidiaries taken as a whole, whether or not arising in the ordinary course of business, which would, in the judgment of the Representativesyour judgment, makes make it impracticable or inadvisable to market the Securities or to enforce contracts for sale of Shares on the Securitiesterms and in the manner contemplated in the Prospectus, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in economic conditions or in the financial markets of the United States or elsewhere, or any other substantial national or international calamity or emergency if the effect of such outbreak, escalation, calamity, crisis or emergency wouldelsewhere that, in the judgment of the Representativesyour judgment, make is material and adverse and, in your judgment, makes it impracticable or inadvisable to market the Securities or to enforce contracts for Shares on the sale of terms and in the Securitiesmanner contemplated in the Prospectus, (iii) any the suspension or material limitation of trading in the Company’s securities or in trading generally in securities other instruments on the New York Stock Exchange, the NYSE Amex EquitiesAmerican Stock Exchange, the NASDAQ Stock Chicago Board of Options Exchange, the Chicago Mercantile Exchange, the Chicago Board of Trade or the Nasdaq National Market or any setting of minimum limitation on prices for trading securities or other instruments on any such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United StatesNasdaq National Market, (iv) the suspension of trading of any declaration securities of a general banking moratorium by federal, New York the Company on any exchange or Maryland authoritiesin the over-the-counter market, (v) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that in your judgment has a material adverse effect on the financial markets in the United States, and would, in the judgment of the Representatives, make it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decree, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which wouldin your opinion materially and adversely If on the Closing Date or on the applicable Option Closing Date, as the case may be, any one or more of the Underwriters shall fail or refuse to purchase the Firm Shares or Additional Shares, as the case may be, which it has or they have agreed to purchase hereunder on such date and the aggregate number of Firm Shares or Additional Shares, as the case may be, which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase is not more than one-tenth of the total number of Shares to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, in the judgment proportion which the number of Firm Shares set forth opposite its name in Schedule I bears to the Representativestotal number of Firm Shares which all the non-defaulting Underwriters, as the case may be, have a Material Adverse Effect. The indemnities and contribution provisions and agreed to purchase, or in such other proportion as you may specify, to purchase the other agreementsFirm Shares or Additional Shares, representations and warranties as the case may be, which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase on such date; provided that in no event shall the number of Firm Shares or Additional Shares, as the Companycase may be, its officers and directors and the Underwriters set forth in or made which any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased pursuant to this Agreement Section 10 by an amount in excess of one-ninth of such number of Firm Shares or Additional Shares, as the case may be, without the written consent of such Underwriter. If on the Closing Date or on an Option Closing Date, as the case may be, any Underwriter or Underwriters shall remain operative and in full force and effectfail or refuse to purchase Firm Shares, or Additional Shares, as the case may be, and will survive delivery the aggregate number of and payment for Firm Shares or Additional Shares, as the Securitiescase may be, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securities) which such default occurs is more than one-tenth of the second paragraph aggregate number of Shares to be purchased on such date by all Underwriters and arrangements satisfactory to you and the Company for purchase of such Shares are not made within 48 hours after such default, this Section 11 or because of the failure or refusal Agreement will terminate without liability on the part of any non-defaulting Underwriter and the Company to comply with and the terms or to fulfill Selling Shareholder. In any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any such case which does not result in termination of this Agreement, either you, the Company or the Selling Shareholder shall have the right to postpone the Closing Date or the applicable Option Closing Date, as the case may be, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement and the Prospectus or any other documents or arrangements may be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereofeffected. Except as otherwise provided, Any action taken under this Agreement has been and is made solely for the benefit paragraph shall not relieve any defaulting Underwriter from liability in respect of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in default of any such Underwriter under this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement shall become effective upon the execution and delivery of this Agreement by the parties heretoAgreement. This Agreement may be terminated at any time on or prior to the Closing Date by you the Representatives by written notice to the Company and each Forward Seller if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is given in the Registration Statement and Prospectus and since the Time of Sale, any Material Adverse Effect occurs, which, in the judgment of the Representatives, makes it impracticable or inadvisable to market the Securities or to enforce contracts for sale of the Securities, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change or development involving a prospective material adverse change (including, without limitation, the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority) in the condition, financial markets or otherwise, of the United States Company and its subsidiaries taken as a whole or elsewherethe earnings, affairs, or any other substantial national business prospects of the Company and its subsidiaries taken as a whole, whether or international calamity or emergency if not arising in the effect ordinary course of such outbreakbusiness, escalation, calamity, crisis or emergency which would, in the judgment of the Representatives, make it impracticable or inadvisable to market the Securities on the terms and in the manner contemplated in the Prospectus, (ii) any outbreak or to enforce contracts for escalation of hostilities or other national or international calamity or crisis (including, without limitation, an act of terrorism) or change in economic conditions or in the sale financial markets of the SecuritiesUnited States or elsewhere that, in the judgment of the Representatives, is material and adverse and would, in the judgment of the Representatives, make it impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus, (iii) any the suspension or material limitation of trading in the Company’s securities generally, or in trading generally in the securities of the Company listed, on the New York Stock Exchange, the NYSE Amex Equities, the American Stock Exchange or The NASDAQ Stock Market or Market, limitation on prices on any setting of minimum prices for trading on such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United Statesexchange, (iv) any declaration of a general banking moratorium material disruption in securities settlement that makes it impracticable to deliver the Securities in the manner contemplated by federalthe Prospectus, New York or Maryland authorities, (v) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your judgment the opinion of the Representatives has a material adverse effect on the financial markets in the United States. If on the Closing Date any one or more of the Underwriters shall fail or refuse to purchase and pay for any of the Securities which it or they have agreed to purchase hereunder on such date and the number of Securities which such defaulting Underwriter or Underwriters, and wouldas the case may be, agreed but failed or refused to purchase is not more than one-tenth of the total number of Securities to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, in the judgment proportion which the number of Securities set forth opposite its name in Schedule I-A bears to the Representativestotal number of Securities which all the non-defaulting Underwriters, make it impracticable as the case may be, have agreed to purchase, or inadvisable in such other proportion as the Representatives may specify, to proceed with the offering, sale or delivery of purchase the Securities which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase on such date; provided that in no event shall the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or number of Securities which any Underwriter has agreed to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decree, or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made purchase pursuant to Section 2 hereof be increased pursuant to this Agreement shall remain operative and Section 11 by an amount in full force and effect, and will survive delivery excess of and payment for the Securities, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any one-ninth of the number of Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters shall fail or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the refuse to purchase Securities and payment for them hereunder and (iii) termination the aggregate number of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (Securities with respect to the Company’s securities) which such default occurs is more than one-tenth of the second paragraph aggregate number of Securities to be purchased on such date by all Underwriters and arrangements satisfactory to the Representatives and the Company for purchase of such Securities are not made within 48 hours after such default, this Section 11 or because of the failure or refusal Agreement will terminate without liability on the part of any non-defaulting Underwriter, any Forward Seller, any Forward Counterparty or the Company to comply with the terms or to fulfill Company. In any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any such case which does not result in termination of this Agreement, either the Representatives, each Forward Seller or the Company shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement and the Prospectus or any other documents or arrangements may be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereofeffected. Except as otherwise provided, Any action taken under this Agreement has been and is made solely for the benefit paragraph shall not relieve any defaulting Underwriter from liability in respect of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in default of any such Underwriter under this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Samples: Underwriting Agreement (Capital One Financial Corp)
Effective Date of Agreement and Termination. This Agreement ------------------------------------------- shall become effective upon the execution and delivery of this Agreement by the parties hereto. This Agreement may be terminated at any time on or prior to the Closing Date by you by written notice to the Company Sellers if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is given in the Registration Statement and the Prospectus, any Material Adverse Effect occursmaterial adverse change or development involving a prospective material adverse change in the condition, whichfinancial or otherwise, of the Company and the Subsidiary, taken as a whole, or the earnings, affairs, or business prospects of the Company and the Subsidiary, taken as a whole, whether or not arising in the ordinary course of business, which would, in the judgment of the Representativesyour judgment, makes make it impracticable or inadvisable to market the Securities or to enforce contracts for sale of Shares on the Securitiesterms and in the manner contemplated in the Prospectus, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in economic conditions or in the financial markets of the United States or elsewhereelsewhere that, or any other substantial national or international calamity or emergency if the effect of such outbreakin your judgment, escalation, calamity, crisis or emergency is material and adverse and would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to market the Securities or to enforce contracts for Shares on the sale of terms and in the Securitiesmanner contemplated in the Prospectus, (iii) any the suspension or material limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, American Stock Exchange or the NASDAQ Stock National Market or any setting of minimum prices for trading on such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United StatesSystem, (iv) the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which in your opinion materially and adversely affects, or will materially and adversely affect, the business or operations of the Company or the Subsidiary, (v) the declaration of a general banking moratorium by federal, either federal or New York State authorities or Maryland authorities, (vvi) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your judgment opinion has a material adverse effect on the financial markets in the United States. If on the Closing Date or on an Option Closing Date, as the case may be, any one or more of the Underwriters shall fail or refuse to purchase the Firm Shares or Additional Shares, as the case may be, which it or they have agreed to purchase hereunder on such date and wouldthe aggregate number of Firm Shares or Additional Shares, as the case may be, which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase is not more than one-tenth of the total number of Shares to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, in the judgment proportion which the number of Firm Shares set forth opposite its name in Schedule I bears to the Representativestotal number of Firm Shares which all the non-defaulting Underwriters, make it impracticable or inadvisable as the case may be, have agreed to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decreepurchase, or in such other promulgation proportion as you may specify, to purchase the Firm Shares or Additional Shares, as the case may be, which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase on such date; provided that in no event shall the number of Firm Shares -------- or Additional Shares, as the case may be, which any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made Underwriter has agreed to purchase pursuant to Section 2 hereof be increased pursuant to this Agreement shall remain operative and Section 10 by an amount in full force and effectexcess of one-ninth of such number of Firm Shares or Additional Shares, and will survive delivery as the case may be, without the written consent of and payment for the Securities, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreementsuch Underwriter. If this Agreement on the Closing Date any Underwriter or Underwriters shall be terminated by fail or refuse to purchase Firm Shares and the Underwriters pursuant to clauses (i) or (iii) (aggregate number of Firm Shares, with respect to the Company’s securities) which such default occurs is more than one-tenth of the second paragraph aggregate number of Shares to be purchased on such date by all Underwriters and arrangements satisfactory to you and the applicable Sellers for purchase of such Shares are not made within 48 hours after such default, this Section 11 or because of the failure or refusal Agreement will terminate without liability on the part of any non-defaulting Underwriter and the Company to comply with the terms or to fulfill applicable Sellers. In any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any such case which does not result in termination of this Agreement, either you or the Company Sellers shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement and the Prospectus or any other documents or arrangements may be liable for all expenses effected. If, on an Option Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase Additional Shares and the aggregate number of Additional Shares with respect to which they have agreed such default occurs is more than one- tenth of the aggregate number of Additional Shares to pay pursuant to Section 5(e) hereof. Except as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the Companypurchased on such date, the Underwriters, non-defaulting Underwriters shall have the option to (i) terminate their obligation hereunder to purchase such Additional Shares or (ii) purchase not less than the number of Additional Shares that such non-defaulting Underwriters would have been obligated to purchase on such date in the absence of such default. Any action taken under this paragraph shall not relieve any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided defaulting Underwriter from liability in respect of any default of any such Underwriter under this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement shall become effective upon the later of (i) execution and delivery of this Agreement and (ii) when notification of the effectiveness of the Registration Statement has been released by the parties heretoCommission. This Agreement may be terminated at any time on or prior to the Closing Date by you by written notice to the Company if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is given in the Registration Statement and the Prospectus, any Material Adverse Effect occursadverse change or development involving a prospective adverse change in the condition, whichfinancial or otherwise, of the Company or any of its subsidiaries or the earnings, affairs, or business prospects of the Company or any of its subsidiaries, whether or not arising in the ordinary course of business, which would, in the judgment of the Representativesyour judgment, makes make it impracticable or inadvisable to market the Securities or to enforce contracts for sale of on the Securitiesterms and in the manner contemplated in the Prospectus, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in economic conditions or in the financial markets of the United States or elsewhereelsewhere that, or any other substantial national or international calamity or emergency if the effect of such outbreakin your judgment, escalation, calamity, crisis or emergency is material and adverse and would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to market the Securities or to enforce contracts for on the sale of terms and in the Securitiesmanner contemplated in the Prospectus, (iii) any the suspension or material limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, American Stock Exchange or the NASDAQ Stock National Market System or any setting of minimum limitation on prices for trading securities on any such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United StatesNational Market System, (iv) any declaration of a general banking moratorium by federal, New York or Maryland authorities, (v) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that in your judgment has a material adverse effect on the financial markets in the United States, and would, in the judgment of the Representatives, make it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decree, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which wouldin your opinion materially and adversely affects, or will materially and adversely affect, the business or operations of the Company or any If on the Closing Date any one or more of the Underwriters shall fail or refuse to purchase the Securities which it or they have agreed to purchase hereunder on such date and the aggregate principal amount of Securities which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase is not more than one-tenth of the total principal amount of the Securities to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, in the judgment proportion which the principal amount of Securities set forth opposite its name in Schedule I bears to the Representativestotal principal amount of Securities which all the non-defaulting Underwriters, as the case may be, have a Material Adverse Effect. The indemnities and contribution provisions and agreed to purchase, or in such other proportion as you may specify, to purchase the other agreementsSecurities which such defaulting Underwriter or Underwriters, representations and warranties as the case may be, agreed but failed or refused to purchase on such date; provided that in no event shall the principal amount of the Company, its officers and directors and the Underwriters set forth in or made Securities which any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased pursuant to this Agreement shall remain operative and Section 9 by an amount in full force and effect, and will survive delivery excess of and payment for the one-ninth of such principal amount of Securities, regardless without the written consent of (i) such Underwriter. If on the Closing Date any investigation, Underwriter or statement as Underwriters shall fail or refuse to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the purchase Securities and payment for them hereunder and (iii) termination the aggregate principal amount of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (Securities with respect to the Company’s securities) which such default occurs is more than one-tenth of the second paragraph aggregate principal amount of Securities to be purchased on such date by all Underwriters and arrangements satisfactory to you and the Company for purchase of such Securities are not made within 48 hours after such default, this Section 11 or because of the failure or refusal Agreement will terminate without liability on the part of any non-defaulting Underwriter and the Company to comply with the terms or to fulfill Company. In any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any such case which does not result in termination of this Agreement, either you or the Company shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement and the Prospectus or any other documents or arrangements may be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereofeffected. Except as otherwise provided, Any action taken under this Agreement has been and is made solely for the benefit paragraph shall not relieve any defaulting Underwriter from liability in respect of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in default of any such Underwriter under this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement shall become effective upon the execution and delivery of this Agreement by the parties heretoAgreement. This Agreement may be terminated at any time on or prior to the Closing Date by you the Underwriter by written notice to the Company if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is given in the Registration Statement and the Prospectus and since the Time of Sale, any Material Adverse Effect occursmaterial adverse change or development involving a prospective material adverse change (including, whichwithout limitation, the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority) in the condition, financial or otherwise, of the Company and its subsidiaries taken as a whole or the earnings, affairs, or business prospects of the Company and its subsidiaries taken as a whole, whether or not arising in the ordinary course of business, which would, in the judgment of the RepresentativesUnderwriter, makes make it impracticable or inadvisable to market the Securities or to enforce contracts for sale of on the Securitiesterms and in the manner contemplated in the Prospectus, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis (including, without limitation, an act of terrorism) or material adverse change in economic conditions or in the financial markets of the United States or elsewhereelsewhere that, or any other substantial national or international calamity or emergency if in the effect judgment of such outbreakthe Underwriter, escalation, calamity, crisis or emergency is material and adverse and would, in the judgment of the RepresentativesUnderwriter, make it impracticable or inadvisable to market the Securities or to enforce contracts for on the sale of terms and in the Securitiesmanner contemplated in the Prospectus, (iii) any the suspension or material limitation of trading in the Company’s securities generally, or in trading generally in the securities of the Company listed, on the New York Stock Exchange, the NYSE Amex Equities, the NASDAQ American or The Nasdaq Stock Market or any setting of minimum prices for trading on such exchange or marketsMarket, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United Stateslimitation on prices on any such exchange, (iv) any declaration of a general banking moratorium material disruption in securities settlement that makes it impracticable to deliver the Securities in the manner contemplated by federalthe Prospectus, New York or Maryland authorities, (v) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your judgment the opinion of the Underwriter has a material adverse effect on the financial markets in the United States, and would, in the judgment of the Representatives, make it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities . If on the terms Closing Date the Underwriter shall fail or refuse to purchase and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts pay for the sale of the Securities or (vi) the enactment, publication, decree, or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made pursuant to this Agreement shall remain operative and in full force and effect, and will survive delivery of and payment for the Securities, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment arrangements satisfactory to the Company for them hereunder and (iii) termination purchase of this Agreement. If such Securities are not made within 48 hours after such default, this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securities) of the second paragraph of this Section 11 or because of the failure or refusal will terminate without liability on the part of the Company to comply with the terms or to fulfill Company. In any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any termination of this Agreementsuch case, the Company shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement and the Prospectus or any other documents or arrangements may be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereofeffected. Except as otherwise provided, Any action taken under this Agreement has been and is made solely for paragraph shall not relieve the benefit Underwriter from liability in respect of and shall be binding upon any default of the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in Underwriter under this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Samples: Underwriting Agreement (Capital One Financial Corp)
Effective Date of Agreement and Termination. This Agreement shall become effective upon the later of (i) execution and delivery of this Agreement and (ii) when notification of the effectiveness of the Registration Statement has been released by the parties heretoCommission. This Agreement may be terminated at any time on or prior to the Closing Date by you by written notice to the Company if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is given in the Registration Statement and the Prospectus, any Material Adverse Effect occursadverse change or development involving a prospective adverse change in the condition, whichfinancial or otherwise, of the Company or any of its subsidiaries or the earnings, affairs, or business prospects of the Company or any of its subsidiaries, whether or not arising in the ordinary course of business, which would, in the judgment of the Representativesyour judgment, makes make it impracticable or inadvisable to market the Securities or to enforce contracts for sale of Shares on the Securitiesterms and in the manner contemplated in the Prospectus, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in economic conditions or in the financial markets of the United States or elsewhereelsewhere that, or any other substantial national or international calamity or emergency if the effect of such outbreakin your judgment, escalation, calamity, crisis or emergency is material and adverse and would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to market the Securities or to enforce contracts for Shares on the sale of terms and in the Securitiesmanner contemplated in the Prospectus, (iii) any the suspension or material limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, American Stock Exchange or the NASDAQ Stock National Market System or any setting of minimum limitation on prices for trading securities on any such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United StatesNational Market System, (iv) the enactment, publication, decree or other promulgation of USA WASTE SERVICES, INC. UNDERWRITING AGREEMENT -- COMMON STOCK - 20 - any federal or state statute, regulation, rule or order of any court or other governmental authority which in your opinion materially and adversely affects, or will materially and adversely affect, the business or operations of the Company or any Subsidiary, (v) the declaration of a general banking moratorium by federal, either federal or New York State authorities or Maryland authorities, (vvi) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your judgment opinion has a material adverse effect on the financial markets in the United States. If on the Closing Date or on an Option Closing Date, as the case may be, any one or more of the Underwriters shall fail or refuse to purchase the Firm Shares or Additional Shares, as the case may be, which it or they have agreed to purchase hereunder on such date and wouldthe aggregate number of Firm Shares or Additional Shares, as the case may be, which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase is not more than one-tenth of the total number of Shares to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, in the judgment proportion which the number of Firm Shares set forth opposite its name in Schedule I bears to the Representativestotal number of Firm Shares which all the non-defaulting Underwriters, make it impracticable or inadvisable as the case may be, have agreed to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decreepurchase, or in such other promulgation proportion as you may specify, to purchase the Firm Shares or Additional Shares, as the case may be, which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase on such date; provided that in no event shall the number of Firm Shares or Additional Shares, as the case may be, which any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made Underwriter has agreed to purchase pursuant to Section 2 hereof be increased pursuant to this Agreement Section 9 by an amount in excess of one-ninth of such number of Firm Shares or Additional Shares, as the case may be, without the written consent of such Underwriter. If on the Closing Date or on an Option Closing Date, as the case may be, any Underwriter or Underwriters shall remain operative and in full force and effectfail or refuse to purchase Firm Shares, or Additional Shares, as the case may be, and will survive delivery the aggregate number of and payment for Firm Shares or Additional Shares, as the Securitiescase may be, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securities) which such default occurs is more than one-tenth of the second paragraph aggregate number of Shares to be purchased on such date by all Underwriters and arrangements satisfactory to you and the Company for purchase of such Shares are not made within 48 hours after such default, this Section 11 or because of the failure or refusal Agreement will terminate without liability on the part of any non-defaulting Underwriter and the Company to comply with the terms or to fulfill Company. In any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any such case which does not result in termination of this Agreement, either you or the Company shall have the right to postpone the Closing Date or the applicable Option Closing Date, as the case may be, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement and the Prospectus or any other documents or arrangements may be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereofeffected. Except as otherwise provided, Any action taken under this Agreement has been and is made solely for the benefit paragraph shall not relieve any defaulting Underwriter from liability in respect of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in default of any such Underwriter under this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Effective Date of Agreement and Termination. (a) This Agreement shall become effective upon at the execution time that the Company and delivery of the Initial Purchasers execute this Agreement. The Initial Purchasers may terminate this Agreement by the parties hereto. This Agreement may be terminated at any time on or prior to the Closing Date by you by written notice to the Company if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is given in the Offering Documents, any adverse change or development involving a prospective adverse change which would cause a Material Adverse Effect occurson the earnings, whichaffairs, or business prospects of the Company, whether or not arising in the ordinary course of business, which would, in the judgment of the RepresentativesInitial Purchasers' judgment, makes make it impracticable or inadvisable to market the Securities or to enforce contracts for sale of Senior Notes on the Securities, terms and in the manner contemplated in the Offering Documents; (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in the financial markets of the United States or elsewhereeconomic conditions, or any other substantial national or international calamity or emergency if the effect of such outbreak, escalation, calamity, crisis or emergency change on the financial markets of the United States or elsewhere would, in the judgment of the RepresentativesInitial Purchasers' judgment, be material and adverse and make it impracticable or inadvisable to market the Securities or to enforce contracts for Senior Notes on the sale of terms and in the Securities, manner contemplated in the Offering Documents; (iii) any the suspension or material limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, American Stock Exchange or the NASDAQ Stock National Market System or any setting of minimum limitation on prices for trading securities on any such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, National Market Systems; (iv) the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which in the Initial Purchasers' opinion causes or will cause a Material Adverse Effect; (v) the declaration of a general banking moratorium by federal, either federal or New York State authorities; or Maryland authorities, (vvi) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your judgment the Initial Purchasers' opinion has a material adverse effect on the financial markets in the United States.
(b) If on the Closing Date, any of the Initial Purchasers shall fail or refuse to purchase Senior Notes which it has agreed to purchase hereunder on such date, and would, in the judgment aggregate principal amount of such Senior Notes that such defaulting Initial Purchaser agreed but failed or refused to purchase does not exceed 10% of the Representatives, make it impracticable or inadvisable to proceed with the offering, sale or delivery total principal amount of such Senior Notes that all of the Securities Initial Purchasers are obligated to purchase on such Closing Date, the non-defaulting Initial Purchasers shall be obligated to purchase the Senior Notes that such defaulting Initial Purchasers agreed but failed or refused to purchase on such date. If, on the terms Closing Date, any of the Initial Purchasers shall fail or refuse to purchase Senior Notes in an aggregate principal amount that exceeds 10% of such total principal amount of the Senior Notes and arrangements satisfactory to the other Initial Purchasers and the Company for the purchase of such Senior Notes are not made within 48 hours after such default, this Agreement shall terminate without liability on the part of the non-defaulting Initial Purchasers or the Company, except as otherwise provided in the manner contemplated by this Section 10. In any such case that does not result in termination of this Agreement, the Pricing Disclosure Package and Initial Purchasers or the Prospectus or to enforce contracts Company may postpone the Closing Date for not longer than seven days, in order that the sale of the Securities or (vi) the enactmentrequired changes, publication, decree, or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which wouldif any, in the judgment of the Representatives, have Offering Memorandum or any other documents or arrangements may be effected. Any action taken under this paragraph shall not relieve a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth defaulting Initial Purchaser from liability in or made pursuant to this Agreement shall remain operative and in full force and effect, and will survive delivery of and payment for the Securities, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf respect of any of the Underwriters or default by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of such Initial Purchaser under this Agreement. .
(c) If this Agreement shall be terminated by the Underwriters Initial Purchasers pursuant to clauses clause (i) or of paragraph (iiia) (with respect to the Company’s securities) of the second paragraph of this Section 11 10 or because of the failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses (including, without limitation, the reasonable fees and disbursements of counsel) reasonably incurred by you. Notwithstanding any termination of this Agreement, the Company shall be liable for all expenses which they have it has agreed to pay pursuant to Section 5(e5(j) hereof. Except as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement shall become effective upon the execution and delivery of this Agreement by the parties hereto. This Agreement may be terminated at any time on or prior to the Closing Date by you the Initial Purchaser by written notice to the Company if any of the following has occurred: (i) on Any outbreak or after the Applicable Timeescalation of hostilities, any Material Adverse Effect occursdeclaration of war by the United States, whichany other calamity, in the judgment of the Representativesemergency or crisis, makes it impracticable or inadvisable to market the Securities or to enforce contracts for sale of the Securities, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in economic conditions in or the financial markets of the United States or elsewhere, elsewhere or any other substantial change or development involving a prospective change in national or international calamity political, financial or emergency if economic conditions, in each case the effect of such outbreak, escalation, calamity, crisis or emergency wouldwhich could make it, in the judgment of the RepresentativesInitial Purchaser's judgment, make it impracticable or inadvisable to market or proceed with the Securities offering or delivery of the Series A Notes on the terms and in the manner contemplated in the Offering Circular or to enforce contracts for the sale of any of the SecuritiesSeries A Notes, (iiiii) any the suspension or limitation of trading in the Company’s securities or in trading generally in securities or other instruments on the New York Stock Exchange, the NYSE Amex EquitiesAmerican Stock Exchange, the NASDAQ Stock Chicago Board of Options Exchange, the Chicago Mercantile Exchange, the Chicago Board of Trade or the Nasdaq National Market or any setting of minimum limitations on prices for trading securities or other instruments on any such exchange or marketson the Nasdaq National Market, (iii) the suspension of trading of any securities of the Company on any exchange or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United Statesover-the-counter market, (iv) the enactment, publication, decree or other promulgation after the date hereof of any federal or state statute, regulation, rule or order of any court or other governmental authority that in the Initial Purchaser's reasonable opinion materially and adversely affects, or could materially and adversely affect, the properties, business, prospects, operations, earnings, assets, liabilities or condition (financial or otherwise) of (a) the Company, (b) RBH or (c) the Guarantors, other than RBH, taken as a whole, (v) the declaration of a general banking moratorium by federal, either federal or New York State authorities or Maryland authorities, (vvi) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your judgment reasonable opinion has a material adverse effect on the financial markets in the United States, and would, in the judgment of the Representatives, make it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decree, or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made pursuant to this Agreement shall remain operative and in full force and effect, and will survive delivery of and payment for the Securities, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securities) of the second paragraph of this Section 11 or because of the failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any termination of this Agreement, the Company shall be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereof. Except as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement shall become effective upon the later of (i) the execution and delivery of this Agreement or (ii) when notification of the effectiveness of the Registration Statement has been released by the parties heretoCommission. This Agreement may be terminated at any time on or prior to the Closing Date by you by written notice to the Company if any of the following has occurred: :
(ia) on or after Since the Applicable Timerespective dates as of which information is given in the Registration Statement and the Prospectus, any adverse change or development involving a prospective adverse change which would cause a Material Adverse Effect occursEffect, whichon the earnings, affairs, or business prospects of the Company or any of its subsidiaries, whether or not arising in the ordinary course of business, which would, in the judgment of the Representativesyour judgment, makes make it impracticable or inadvisable to market the Securities or to enforce contracts for sale of Units on the Securities, terms and in the manner contemplated in the Prospectus;
(iib) any new Any outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in the financial markets of the United States or elsewhereeconomic conditions, or any other substantial national or international calamity or emergency if the effect of such outbreak, escalation, calamity, crisis or emergency change on the financial markets of the United States or elsewhere would, in the judgment of the Representativesyour judgment, be material and adverse and make it impracticable or inadvisable to market the Securities or to enforce contracts for Units on the sale of terms and in the Securities, manner contemplated in the Prospectus;
(iiic) any The suspension or material limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, American Stock Exchange or the NASDAQ Stock Nasdaq National Market or any setting of minimum the limitation on prices for trading securities on any such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, National Market System;
(ivd) any declaration of a general banking moratorium by federal, New York or Maryland authorities, (v) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that in your judgment has a material adverse effect on the financial markets in the United States, and would, in the judgment of the Representatives, make it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (vi) the The enactment, publication, decree, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have your opinion causes or will cause a Material Adverse Effect. ;
(e) The indemnities and contribution provisions and declaration of a banking moratorium by either federal or New York State authorities;
(f) The taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs which in your opinion has a material adverse effect on the other agreements, representations and warranties financial markets in the United States; or
(g) Any of the Company's securities shall have been downgraded or placed on any "watch list" for possible downgrading by any nationally recognized statistical rating organization, its officers and directors and provided that in the Underwriters set forth case of such "watch list" placement, termination shall be permitted only if such placement would, in your judgment, make it impracticable or made pursuant inadvisable to this Agreement shall remain operative and in full force and effect, and will survive delivery of and payment market the Units or to enforce contracts for the Securities, regardless sale of (i) any investigation, the Units or statement as to materially impair the results thereof, made by or on behalf investment quality of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securities) of the second paragraph of this Section 11 or because of the failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any termination of this Agreement, the Company shall be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereof. Except as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchaseSecurities.
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement shall become effective upon the later of (i) execution and delivery of this Agreement and (ii) when notification of the effectiveness of the Registration Statement has been released by the parties heretoCommission. This Agreement may be terminated at any time on or prior to the Closing Date by you by written notice to the Company if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is given in the Registration Statement and the Prospectus, any Material Adverse Effect occursadverse change or development involving a prospective adverse change in the condition, whichfinancial or otherwise, of the Company or any of its subsidiaries or the earnings, affairs, or business prospects of the Company or any of its subsidiaries, whether or not arising in the ordinary course of business, which would, in the judgment of the Representativesyour judgment, makes make it impracticable or inadvisable to market the Securities or to enforce contracts for sale of on the Securitiesterms and in the manner contemplated in the Prospectus, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in economic conditions or in the financial markets of the United States or elsewhereelsewhere that, or any other substantial national or international calamity or emergency if the effect of such outbreakin your judgment, escalation, calamity, crisis or emergency is material and adverse and would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to market the Securities or to enforce contracts for on the sale of terms and in the Securitiesmanner contemplated in the Prospectus, (iii) any the suspension or material limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, American Stock Exchange or the NASDAQ Stock National Market System or any setting of minimum limitation on prices for trading securities on any such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United StatesNational Market System, (iv) the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which in your opinion materially and adversely affects, or will materially and adversely affect, the business or operations of the Company or any Subsidiary, (v) the declaration of a general banking moratorium by federal, either federal or New York State authorities or Maryland authorities, (vvi) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your judgment opinion has a material adverse effect on the financial markets in the United States. If on the Closing Date or on an Option Closing Date, as the case may be, any one or more of the Underwriters shall fail or refuse to purchase the Firm Securities or Additional Securities, as the case may be, which it or they have agreed to purchase hereunder on such date and wouldthe aggregate principal amount USA WASTE SERVICES, INC. UNDERWRITING AGREEMENT -- CONVERTIBLE SUBORDINATED NOTES - 22 - 23 of Firm Securities or Additional Securities, as the case may be, which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase is not more than one-tenth of the total principal amount of the Securities to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, in the judgment proportion which the principal amount of Firm Securities set forth opposite its name in Schedule I bears to the Representativestotal principal amount of Firm Securities which all the non-defaulting Underwriters, make it impracticable as the case may be, have agreed to purchase, or inadvisable in such other proportion as you may specify, to proceed with purchase the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Firm Securities or (vi) Additional Securities, as the enactmentcase may be, publicationwhich such defaulting Underwriter or Underwriters, decreeas the case may be, agreed but failed or other promulgation refused to purchase on such date; provided that in no event shall the principal amount of Firm Securities or Additional Securities, as the case may be, which any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made Underwriter has agreed to purchase pursuant to Section 2 hereof be increased pursuant to this Agreement Section 9 by an amount in excess of one-ninth of such principal amount of Firm Securities or Additional Securities, as the case may be, without the written consent of such Underwriter. If on the Closing Date or on an Option Closing Date, as the case may be, any Underwriter or Underwriters shall remain operative and in full force and effectfail or refuse to purchase Firm Securities, or Additional Securities, as the case may be, and will survive delivery the aggregate principal amount of and payment for the Firm Securities or Additional Securities, regardless of (i) any investigationas the case may be, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securities) which such default occurs is more than one-tenth of the second paragraph aggregate principal amount of Securities to be purchased on such date by all Underwriters and arrangements satisfactory to you and the Company for purchase of such Securities are not made within 48 hours after such default, this Section 11 or because of the failure or refusal Agreement will terminate without liability on the part of any non-defaulting Underwriter and the Company to comply with the terms or to fulfill Company. In any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any such case which does not result in termination of this Agreement, either you or the Company shall have the right to postpone the Closing Date or the applicable Option Closing Date, as the case may be, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement and the Prospectus or any other documents or arrangements may be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereofeffected. Except as otherwise provided, Any action taken under this Agreement has been and is made solely for the benefit paragraph shall not relieve any defaulting Underwriter from liability in respect of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in default of any such Underwriter under this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Effective Date of Agreement and Termination. This If the Registration Statement has not been declared effective prior to the date of this Agreement, this Agreement shall become effective at such time, after notification of the effectiveness of the Registration Statement has been released by the Commission, as you and the Company shall agree upon the public offering price and the Unit Purchase Price. If the public offering price and the Unit Purchase Price shall not have been determined prior to 6:00 P.M. New York time, on the seventh full business day after the Registration Statement shall have become effective, this Agreement shall thereupon terminate without liability on the part of the Underwriters or the Company, except as set forth herein. If the Registration Statement has been declared effective prior to the date of this Agreement, this Agreement shall become effective upon the execution and delivery of this Agreement by you and the parties heretoCompany. This Agreement may be terminated at any time on or prior to the Closing Date by you by written notice to the Company if any of the following has occurred: occurred or in your opinion is likely to occur:
(ia) on or after since the Applicable Timerespective dates as of which information is given in the Registration Statement and the Prospectus, any Material Adverse Effect occursadverse change or development involving a prospective adverse change in or affecting particularly the condition, whichfinancial or otherwise, of the Company or any of its subsidiaries, or the earnings, business affairs or business prospects of the Company or any of its subsidiaries taken as a whole, whether or not arising in the ordinary course of business, as would, in your judgment, make the judgment offering or delivery of the Representatives, makes it impracticable or inadvisable to market the Securities or to enforce contracts for sale of the Securities, impracticable;
(iib) any new outbreak or material escalation of hostilities or other national or international calamity or crisis, if the effect of such outbreak, calamity or crisis or material adverse change in on the financial markets of the United States or elsewhere, or any other substantial national or international calamity or emergency if the effect of such outbreak, escalation, calamity, crisis or emergency elsewhere would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to market the Securities or to enforce contracts for the sale of the Securities, (iii) any suspension or limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, the NASDAQ Stock Market or any setting of minimum prices for trading on such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iv) any declaration of a general banking moratorium by federal, New York or Maryland authorities, (v) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that in your judgment has a material adverse effect on the financial markets in the United States, and would, in the judgment of the Representatives, make it impracticable or inadvisable to proceed with the offering, sale offering or delivery of the Securities impracticable;
(c) suspension of trading in securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus any United States stock exchange or to enforce contracts system or limitation on prices (other than limitations on hours or numbers of days of trading) for the sale of the Securities securities on any such exchange or system;
(vid) the enactment, publication, decree, decree or other promulgation of any federal Federal or state statute, regulation, rule or order of any court or other governmental authority that in your opinion materially and adversely affects, or will materially and adversely affect, the business or operations of the Company or any of its subsidiaries;
(e) declaration of a banking moratorium by either federal, provincial, state or local U.S. or Canadian authorities; or 26 (f) the taking of any action by any federal, provincial, state or local U.S. or Canadian government or agency in respect of its monetary or fiscal affairs that in your opinion has a material adverse effect on the financial or securities markets in the United States or upon the Company's ability to utilize the offering proceeds in the manner described in the Registration Statement. If on the Closing Date or on any Option Closing Date, any one or more of the Underwriters shall fail or refuse to purchase the Firm Units or Additional Units which wouldit or they have agreed to purchase hereunder on such date, and the aggregate number of Firm Units or Additional Units which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase is not more than one-tenth of the total number of Units to be purchased on such date, each non-defaulting Underwriter shall be obligated severally, in the judgment proportion which the number of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters Firm Units set forth opposite its name in Schedule I bears to the total Firm Units that all the non-defaulting Underwriters have agreed to purchase, or made in such other proportion as you may specify, to purchase the Firm Units or Additional Units that such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such date; provided that in no event shall the number of Firm Units or Additional Units which any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased pursuant to this Agreement shall remain operative and Section 12 by an amount in full force and effectexcess of one-ninth of such number of Firm Units or Additional Units, and will survive delivery as the case may be, without the written consent of and payment for such Underwriter. If on the Securities, regardless of (i) any investigation, or statement as to the results thereof, made by Closing Date or on behalf of any of Option Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase Firm Units or Additional Units and the Underwriters aggregate number Firm Units or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (Additional Units with respect to the Company’s securities) which such default occurs is more than one-tenth of the second paragraph aggregate number of Units to be purchased on such date, and arrangements satisfactory to you and the Company for purchase of such Units are not made within 48 hours after such default, this Section 11 or because of the failure or refusal Agreement will terminate without liability on the part of any nondefaulting Underwriter or the Company to comply with the terms or to fulfill Company. In any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any such case that does not result in termination of this Agreement, either you or the Company shall have the right to postpone the Closing Date or any Option Closing Date but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement and the Prospectus or any other documents or arrangements may be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereofeffected. Except as otherwise provided, Any action taken under this Agreement has been and is made solely for the benefit section shall not relieve any defaulting Underwriter from liability in respect of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in default of any such Underwriter under this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Samples: Underwriting Agreement (Vista Laser Centers of the Pacific Inc)
Effective Date of Agreement and Termination. This Agreement shall become effective upon the later of (i) execution and delivery of this Agreement and (ii) when notification of the effectiveness of the Registration Statement has been released by the parties heretoCommission. This Agreement may be terminated at any time on or prior to before the Closing Date by you by written notice to the Company if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is given in the Registration Statement and the Prospectus, any Material Adverse Effect occursadverse change or development involving a prospective adverse change in the condition, whichfinancial or otherwise, of the Company or its subsidiary or the earnings, affairs, or business prospects of the Company or its subsidiary, whether or not arising in the ordinary course of business, which would, in the judgment of the Representativesyour reasonable judgment, makes make it impracticable or inadvisable to market the Securities or to enforce contracts for sale of Shares on the Securitiesterms and in the manner contemplated in the Prospectus, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in economic conditions or in the financial markets of the United States or elsewhereelsewhere that, or any other substantial national or international calamity or emergency if the effect of such outbreakin your reasonable judgment, escalation, calamity, crisis or emergency is material and adverse and would, in the judgment of the Representativesyour reasonable judgment, make it impracticable or inadvisable to market the Securities or to enforce contracts for Shares on the sale of terms and in the Securitiesmanner contemplated in the Prospectus, (iii) any the suspension or material limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, American Stock Exchange or the NASDAQ Stock Market National Market or any setting of minimum limitation on prices for trading securities on any such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United StatesNational Market System, (iv) the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which in your reasonable opinion materially and adversely affects, or will materially and adversely affect, the business or operations of the Company or its subsidiary, (v) the declaration of a general banking moratorium by federal, either federal or New York authorities or Maryland authorities, (vvi) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your judgment reasonable opinion has a material adverse effect on the financial markets in the United States, and would, in the judgment of the Representatives, make it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decree, or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made pursuant to this Agreement shall remain operative and in full force and effect, and will survive delivery of and payment for the Securities, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securities) of the second paragraph of this Section 11 or because of the failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any termination of this Agreement, the Company shall be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereof. Except as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement shall become effective upon the execution and delivery of this Agreement by the parties heretoAgreement. This Agreement may be terminated at any time on or prior to the Closing Date by you by written notice to the Company if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is given in the Final Offering Memorandum, any Material Adverse Effect occursmaterial adverse change, whichor development that could reasonably be expected to result in a material adverse change, in the judgment condition, financial or otherwise, of the RepresentativesCompany and its subsidiaries, makes taken as a whole, or the earnings, affairs, or business prospects of the Company and its subsidiaries, taken as a whole, whether or not arising in the ordinary course of business, which would, in your judgment, make it impracticable or inadvisable to market the Securities or to enforce contracts for sale of on the Securitiesterms and in the manner contemplated in the Final Offering Memorandum, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in economic conditions or in the financial markets of the United States or elsewhereelsewhere that, or any other substantial national or international calamity or emergency if the effect of such outbreakin your judgment, escalation, calamity, crisis or emergency is material and adverse and would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to market the Securities or to enforce contracts for on the sale of terms and in the Securitiesmanner contemplated in the Final Offering Memorandum, (iii) any the suspension or material limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, the NASDAQ American Stock Exchange or The Nasdaq Stock Market or any setting of minimum limitation on prices for trading securities on any such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United StatesThe Nasdaq Stock Market, (iv) the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which in your opinion materially and adversely affects, or will materially and adversely affect, the business or operations of the Company and its subsidiaries, taken as a whole, (v) the declaration of a general banking moratorium by federal, either federal or New York State authorities or Maryland authorities, (vvi) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your judgment opinion has a material adverse effect on the financial markets in the United States, and would, in the judgment of the Representatives, make it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decree, or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made pursuant to this Agreement shall remain operative and in full force and effect, and will survive delivery of and payment for the Securities, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securities) of the second paragraph of this Section 11 or because of the failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any termination of this Agreement, the Company shall be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereof. Except as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Samples: Purchase Agreement (Occusystems Inc)
Effective Date of Agreement and Termination. This Agreement shall become effective upon the later of (i) the execution and delivery of this Agreement by the parties hereto, (ii) the effectiveness of the Registration Statement, and (iii) if a post-effective amendment is required to be filed pursuant to Rule 430A under the Act, the effectiveness of such post-effective amendment. This Agreement may be terminated at any time on or prior to the Closing Date by you by notice to the Company if any of the following has occurred: (i) on subsequent to the date the Registration Statement is declared effective or after the Applicable Timedate of this Agreement, any Material Adverse Effect occurs, Change occurs which, in the judgment of the Representativesany Underwriter, makes make it impracticable or inadvisable to market the Securities Shares or to enforce contracts for the sale of the SecuritiesShares, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in the financial markets of the United States or elsewhere, or any other substantial national or international calamity or emergency if the effect of such outbreak, escalation, calamity, crisis or emergency would, in the judgment of the Representativesany Underwriter, make it impracticable or inadvisable to market the Securities Shares or to enforce contracts for the sale of the SecuritiesShares, (iii) any suspension or limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex EquitiesAmerican Stock Exchange, the NASDAQ Nasdaq Stock Market or in the over-the-counter markets or any setting of minimum prices for trading on such exchange exchanges or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iv) any declaration of a general banking moratorium by federalFederal, New York or Maryland Ohio authorities, (v) the taking of any action by any federalFederal, state or local government or agency in respect of its monetary or fiscal affairs that in your judgment has a material adverse effect on the financial markets in the United States, and would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to proceed with market the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus Shares or to enforce contracts for the sale of the Securities or Shares, (vi) the enactment, publication, decree, or other promulgation of any federal Federal or state statute, regulation, rule or order of any court or other governmental authority which which, in your judgment, materially and adversely affects or will materially and adversely affect the business or operations of the Company or any Subsidiary, or (vii) any securities of the Company or any of the Subsidiaries shall have been downgraded or placed on any "watch list" for possible downgrading by any nationally recognized statistical rating organization, PROVIDED, that in the case of such "watch list" placement, termination shall be permitted only if such placement would, in the judgment of any Underwriter, make it impracticable or inadvisable to market the Representatives, have a Material Adverse EffectShares or to enforce contracts for the sale of the Shares or material- ly impair the investment quality of the Shares. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and of the Underwriters set forth in or made pursuant to this Agreement shall remain operative and in full force and effect, and will survive delivery of and payment for the SecuritiesShares, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its the officers or directors of the Company or any controlling person thereofof the Company, (ii) acceptance of the Securities Shares and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securitiesvii) of the second paragraph of this Section 11 10 or because of the failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses (including the fees and disbursements of counsel) incurred by you. Notwithstanding any termination of this Agreement, the Company shall be liable for all expenses which they have it has agreed to pay pursuant to Section 5(e5(k) hereof. Except as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement shall become effective upon the later of (i) execution and delivery of this Agreement and (ii) when notification of the effectiveness of the Registration Statement has been released by the parties heretoCommission. This Agreement may be terminated at any time on or prior to the Closing Date by you by written notice to the Company if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is given in the Registration Statement and the Prospectus, any Material Adverse Effect occursmaterial adverse change or development involving a prospective material adverse change in the condition, whichfinancial or otherwise, of the Company and its subsidiaries, taken as a whole, or the earnings, affairs, or business prospects of the Company or any of its subsidiaries, taken as a whole, whether or not arising in the ordinary course of business, which would, in the judgment of the Representativesyour judgment, makes make it impracticable or inadvisable to market the Securities or to enforce contracts for sale of Shares on the Securitiesterms and in the manner contemplated in the Prospectus, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in economic conditions or in the financial markets of the United States or elsewhereelsewhere that, or any other substantial national or international calamity or emergency if the effect of such outbreakin your judgment, escalation, calamity, crisis or emergency is material and adverse and would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to market the Securities or to enforce contracts for Shares on the sale of terms and in the Securitiesmanner contemplated in the Prospectus, (iii) any the suspension or material limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, American Stock Exchange or the NASDAQ Stock Nasdaq National Market System or any setting of minimum limitation on prices for trading securities on any such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United StatesNational Market System, (iv) the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which in your opinion materially and adversely affects, or will materially and adversely affect, the business or operations of the Company and its subsidiaries taken as a whole, (v) the declaration of a general banking moratorium by federal, either federal or New York State authorities or Maryland authorities, (vvi) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your judgment opinion has a material adverse effect on the financial markets in the United States, and would, in the judgment of the Representatives, make it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities . If on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decree, or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made pursuant to this Agreement shall remain operative and in full force and effect, and will survive delivery of and payment for the Securities, regardless of (i) any investigation, or statement as to the results thereof, made by Closing Date or on behalf of an Option Closing Date, as the case may be, any one or more of the Underwriters shall fail or by refuse to purchase the Firm Shares or on behalf of Additional Shares, as the Companycase may be, its officers which it or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securities) of the second paragraph of this Section 11 or because of the failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any termination of this Agreement, the Company shall be liable for all expenses which they have agreed to pay pursuant purchase hereunder on such date and the aggregate number of Firm Shares or Additional Shares, as the case may be, which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to Section 5(e) hereof. Except as otherwise providedpurchase is not more than one-tenth of the total number of Shares to be purchased on such date by all Underwriters, this Agreement has been and is made solely for the benefit of and each non-defaulting Underwriter shall be binding upon obligated severally, in the Company, proportion which the number of Firm Shares set forth opposite its name in Schedule I bears to the total number of Firm Shares which all the non-defaulting Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.case may be,
Appears in 1 contract
Samples: Underwriting Agreement (Mercury Inc)
Effective Date of Agreement and Termination. This Agreement shall become effective upon at the execution time that the Issuers and delivery of the Initial Purchasers execute this Agreement. The Initial Purchasers may terminate this Agreement by the parties hereto. This Agreement may be terminated at any time on or prior to the Closing Date by you by written notice to the Company if any of the following has occurred: :
(ia) on or after since the Applicable Timerespective dates as of which information is given in the Offering Documents, any Material Adverse Effect occursadverse change or development involving a prospective adverse change, whichwhether or not arising in the ordinary course of business, which would, in the judgment of the RepresentativesInitial Purchasers' judgment, makes make it impracticable or inadvisable to market the Securities or to enforce contracts for sale of Series A Notes on the Securities, terms and in the manner contemplated in the Offering Documents;
(iib) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in the financial markets of the United States or elsewhereeconomic conditions, or any other substantial national or international calamity or emergency if the effect of such outbreak, escalation, calamity, crisis or emergency change on the financial markets of the United States or elsewhere would, in the judgment of the RepresentativesInitial Purchasers' judgment, make it impracticable or inadvisable to market the Securities or to enforce contracts for Series A Notes on the sale of terms and in the Securities, manner contemplated in the Offering Documents;
(iiic) any the suspension or material limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, American Stock Exchange or the NASDAQ Stock Nasdaq National Market or any setting of minimum limitation on prices for trading securities on any such exchange exchange;
(d) the enactment, publication, decree or marketsother promulgation of any federal or state statute, regulation, rule or a material disruption has occurred in commercial banking order of any court or securities settlement or clearance services other governmental authority which, in the United StatesInitial Purchasers' opinion, causes or could cause a Material Adverse Effect;
(ive) any the declaration of a general banking moratorium by federal, either federal or New York or Maryland State authorities, ;
(vf) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which, in your judgment the Initial Purchasers' opinion, has a material adverse effect on the financial markets in the United States; or
(g) any of the Company's securities shall have been downgraded or placed on any "watch list" for possible downgrading by any nationally recognized statistical rating organization, and provided that, in the case of such "watch list" placement, termination shall be permitted only if such placement would, in the judgment of the RepresentativesInitial Purchasers, make it impracticable or inadvisable to proceed with market the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus Series A Notes or to enforce contracts for the sale of the Securities Series A Notes or (vi) materially impair the enactmentinvestment quality of the Series A Notes. If, publicationon the Closing Date, decreeany one or more of the Initial Purchasers shall fail or refuse to purchase the Series A Notes which it or they have agreed to purchase hereunder on such date and the aggregate principal amount of the Series A Notes which such defaulting Initial Purchaser or Initial Purchasers, as the case may be, agreed but failed or other promulgation refused to purchase is not more than one-tenth of any federal or state statutethe aggregate principal amount of the Series A Notes to be purchased on such date by all Initial Purchasers, regulation, rule or order of any court or other governmental authority which wouldeach non-defaulting Initial Purchaser shall be obligated severally, in the judgment proportion which the principal amount of the RepresentativesSeries A Notes set forth opposite its name in Schedule B bears to the aggregate principal amount of the Series A Notes which all the non-defaulting Initial Purchasers, as the case may be, have a Material Adverse Effect. The indemnities and contribution provisions and agreed to purchase, or in such other proportion as the other agreementsInitial Purchasers may specify, representations and warranties to purchase the Series A Notes which such defaulting Initial Purchaser or Initial Purchasers, as the case may be, agreed but failed or refused to purchase on such date; provided that in no event shall the aggregate principal amount of the Company, its officers and directors and the Underwriters set forth in or made Series A Notes which any Initial Purchaser has agreed to purchase pursuant to Section 2 hereof be increased pursuant to this Agreement shall remain operative and Section 10 by an amount in full force and effect, and will survive delivery excess of and payment for the Securities, regardless one-ninth of (i) any investigation, or statement as to the results thereof, made by or on behalf of any such principal amount of the Underwriters Series A Notes without the written consent of such Initial Purchaser. If, on the Closing Date, any Initial Purchaser or by Initial Purchasers shall fail or on behalf refuse to purchase the Series A Notes and the aggregate principal amount of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (Series A Notes with respect to the Company’s securities) which such default occurs is more than one-tenth of the second paragraph of this Section 11 or because aggregate principal amount of the failure or refusal Series A Notes to be purchased by all Initial Purchasers and arrangements satisfactory to the Initial Purchasers and the Issuers for purchase of such the Series A Notes are not made within 48 hours after such default, this Agreement will terminate without liability on the part of any non-defaulting Initial Purchaser and the Company to comply with the terms or to fulfill Company. In any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any such case which does not result in termination of this Agreement, either the Initial Purchasers or the Company shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the required changes, if any, in the Offering Circular or any other documents or arrangements may be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereofeffected. Except as otherwise provided, Any action taken under this Agreement has been and is made solely for the benefit paragraph shall not relieve any defaulting Initial Purchaser from liability in respect of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in default of any such Initial Purchaser under this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement shall become effective upon the later of (i) execution and delivery of this Agreement and (ii) receipt of notification of the effectiveness of the Registration Statement by WFSRC2 or the parties heretoRepresentative. This Agreement may be terminated at any time on or prior to the Closing Date by you the Representative by written notice to the Company WFSRC2 if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is given in the Registration Statement and the Prospectus, any Material Adverse Effect occursadverse change or development involving a prospective adverse change in or affecting particularly the condition, whichfinancial or otherwise, of WFSRC2 or WFS or the earnings, affairs or business prospects of WFSRC2 or WFS, whether or not arising in the ordinary course of business, which would, in the reasonable judgment of the RepresentativesRepresentative, makes it impracticable make the offering or inadvisable to market the Securities or to enforce contracts for sale delivery of the Securitiesany class of Notes impracticable, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in economic conditions, if the effect of such outbreak, calamity, crisis or change on the financial markets of the United States or elsewhere, or any other substantial national or international calamity or emergency if the effect of such outbreak, escalation, calamity, crisis or emergency elsewhere would, in the reasonable judgment of the RepresentativesRepresentative, make it impracticable the offering or inadvisable to market the Securities or to enforce contracts for the sale delivery of the Securitiesany class of Notes impracticable, (iii) any suspension or limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange or the American Stock Exchange or limitation on prices (other than limitations on hours or numbers of days of trading) for securities on either such Exchange, the NYSE Amex Equities, the NASDAQ Stock Market or any setting of minimum prices for trading on such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iv) the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which in the reasonable opinion of the Representative materially and adversely affects, or will materially and adversely affect, the business or operations of WFSRC2 or WFS, (v) declaration of a general banking moratorium by federal, either federal or New York State authorities or Maryland authorities, (vvi) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your judgment the reasonable opinion the Representative has a material adverse effect on the financial markets in the United States, and would, in the judgment of the Representatives, make it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decree, or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made pursuant to this Agreement shall remain operative and in full force and effect, and will survive delivery of and payment for the Securities, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securities) of the second paragraph of this Section 11 or because of the failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any termination of this Agreement, the Company shall be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereof. Except as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement shall become effective upon the later of (i) execution and delivery of this Agreement Agreement, (ii) when notification of the effectiveness of the Registration Statement has been released by the parties heretoCommission and (iii) if a post-effective amendment to the Registration Statement has been filed (including any post-effective amendment required to be filed pursuant to Rule 430A) or a new or additional registration statement has been filed (including any new or additional registration statement required to be filed pursuant to Rule 462 under the Act), the effectiveness of such post-effective amendment or new or additional registration statement. Until this Agreement becomes effective as aforesaid, it may be terminated by the Company or the Selling Stockholders by notifying the Underwriters or by the Underwriters by notifying the Company and the Selling Stockholders. This Agreement may be terminated at any time on or after it becomes effective and prior to the Closing Date by you by written notice to the Company and the Selling Stockholders if any of the following has occurred: (i) on or after the Applicable Time, any Material Adverse Effect occurs, which, in the judgment of the Representatives, makes it impracticable or inadvisable to market the Securities or to enforce contracts for sale of the Securities, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in economic conditions or in the financial markets of the United States or elsewhereelsewhere that, or any other substantial national or international calamity or emergency if the effect of such outbreakin your judgment, escalation, calamity, crisis or emergency is material and adverse and would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to market the Securities Shares on the terms and in the manner contemplated in the Prospectus, or to enforce contracts for (ii) the sale of the Securities, (iii) any suspension or material limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, American Stock Exchange or the NASDAQ Stock Nasdaq National Market or any setting of minimum limitation on prices for trading securities on any such exchange or marketsthe Nasdaq National Market, (iii) the suspension of trading of any securities of the Company on any exchange or in the over-the-counter market, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iv) any the declaration of a general banking moratorium by federal, either federal or New York or Maryland State authorities, (v) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that in your judgment has a material adverse effect . If on the financial markets in Closing Date or on the United StatesOption Closing Date, as the case may be, any one or more of the Underwriters shall fail or refuse to purchase the Firm Shares or Additional Shares, as the case may be, that it or they have agreed to purchase hereunder on such date, and wouldthe aggregate number of Firm Shares or Additional Shares, as the case may be, that such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase is not more than one-tenth of the total number of Firm Shares or Additional Shares, as the case may be, to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, in the judgment proportion that the number of Firm Shares set forth opposite its name in SCHEDULE I bears to the Representativestotal number of Firm Shares that all the non-defaulting Underwriters, make it impracticable or inadvisable as the case may be, have agreed to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decreepurchase, or in such other promulgation proportion as you may specify, to purchase the Firm Shares or Additional Shares, as the case may be, that such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase on such date; PROVIDED that in no event shall the number of Firm Shares or Additional Shares, as the case may be, that any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made Underwriter has agreed to purchase pursuant to Section 2 hereof be increased pursuant to this Agreement Section 10 by an amount in excess of one-ninth of such number of Firm Shares or Additional Shares, as the case may be, without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters shall remain operative and in full force and effectfail or refuse to purchase Firm Shares, and will survive delivery the aggregate number of and payment for the Securities, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (Firm Shares with respect to the Company’s securities) which such default occurs is more than one-tenth of the second paragraph aggregate number of Firm Shares to be purchased on such date by all Underwriters, and arrangements satisfactory to you and the Selling Stockholders for purchase of such Firm Shares are not made within 48 hours after such default, this Section 11 or because of the failure or refusal Agreement will terminate without liability on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreementnon-defaulting Underwriter, the Company agrees to reimburse you for all out-of-pocket expenses incurred by youor the Selling Stockholders. Notwithstanding In any such case that does not result in termination of this Agreement, either you or the Company Selling Stockholders shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement and the Prospectus or any other documents or arrangements may be liable for all expenses effected. If, on an Option Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase Additional Shares and the aggregate number of Additional Shares with respect to which they have agreed such default occurs is more than one-tenth of the aggregate number of Additional Shares to pay pursuant to Section 5(e) hereof. Except as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the Companypurchased on such date, the Underwriters, non-defaulting Underwriters shall have the option to (i) terminate their obligation hereunder to purchase such Additional Shares or (ii) purchase not less than the number of Additional Shares that such non-defaulting Underwriters would have been obligated to purchase on such date in the absence of such default. Any action taken under this paragraph shall not relieve any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided defaulting Underwriter from liability in respect of any default of any such Underwriter under this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement shall become effective upon the execution and delivery of this Agreement by the parties heretoAgreement. This Agreement may be terminated at any time on or prior to the Closing Date by you by written notice to the Company if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is given in the Registration Statement and the Prospectus, any Material Adverse Effect occursmaterial adverse change or development involving a prospective material adverse change in the condition, whichfinancial or otherwise, of the Company and its Subsidiaries, taken as a whole, or the earnings, affairs, or business prospects of the Company and its Subsidiaries, taken as a whole, whether or not arising in the ordinary course of business, which would, in the judgment of the Representativesyour judgment, makes make it impracticable or inadvisable to market the Securities or to enforce contracts for sale of Shares on the Securitiesterms and in the manner contemplated in the Prospectus, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in economic conditions the effect of which on the financial markets of the United States or elsewhere, or any other substantial national or international calamity or emergency if the effect of such outbreakin your judgment, escalation, calamity, crisis or emergency is material and adverse and would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to market the Securities or to enforce contracts for Shares on the sale of terms and in the Securitiesmanner contemplated in the Prospectus, (iii) any the suspension or material limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, American Stock Exchange or the NASDAQ Nasdaq Stock Market or any setting of minimum limitation on prices for trading securities on any such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United StatesNational Market System, (iv) the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority that in your opinion materially and adversely affects, or will materially and adversely affect, the business or operations of the Company and its Subsidiaries, taken as a whole, (v) the declaration of a general banking moratorium by federal, either federal or New York State authorities or Maryland authorities, (vvi) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your judgment opinion has a material adverse effect on the financial markets in the United States, and would, in the judgment of the Representatives, make it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decree, or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made pursuant to this Agreement shall remain operative and in full force and effect, and will survive delivery of and payment for the Securities, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securities) of the second paragraph of this Section 11 or because of the failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any termination of this Agreement, the Company shall be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereof. Except as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement shall become effective upon the execution and delivery of this Agreement by the parties heretoAgreement. This Agreement may be terminated at any time on or prior to the Closing Date by you the Representative by written notice to the Company if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is given in the Registration Statement and the Prospectus and since the Time of Sale, any Material Adverse Effect occursmaterial adverse change in the condition, whichfinancial or otherwise, of the Company and its subsidiaries taken as a whole or the earnings, affairs, or business prospects of the Company and its subsidiaries taken as a whole, whether or not arising in the ordinary course of business, which would, in the judgment of the RepresentativesRepresentative (after discussion with the Company to the extent practicable), makes make it impracticable or inadvisable to market the Securities or to enforce contracts for sale of on the Securitiesterms and in the manner contemplated in the Prospectus, (ii) a general moratorium on commercial banking activities in New York declared by either Federal or New York State authorities, or in Switzerland declared by Swiss authorities, (iii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis (including, without limitation, an act of terrorism) or material adverse change in in the international financial markets or financial markets of the United States or elsewhere, or any other substantial national or international calamity or emergency if the effect of such outbreak, escalation, calamity, crisis or emergency would, in the judgment of the Representatives, make it impracticable or inadvisable to market the Securities or to enforce contracts for the sale of the Securities, (iii) any suspension or limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, the NASDAQ Stock Market or any setting of minimum prices for trading on such exchange or markets, or a that is material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iv) any declaration of a general banking moratorium by federal, New York or Maryland authorities, (v) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that in your judgment has a material and adverse effect on the financial markets in the United States, and would, in the judgment of the RepresentativesRepresentative (after discussion with the Company to the extent practicable), make it impracticable or inadvisable to proceed with the offering, sale or delivery of market the Securities on the terms and in the manner contemplated by this Agreementin the Prospectus, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (viiv) the enactment, publication, decreesuspension or material limitation of trading in securities generally, or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made pursuant to this Agreement shall remain operative and in full force and effect, and will survive delivery of and payment for the Securities, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securities) of the second paragraph of this Section 11 or because of the failure or refusal on the part securities of the Company to comply with listed, on the terms or to fulfill any of the conditions of this AgreementSIX Swiss Exchange, New York Stock Exchange, the Company agrees NYSE American or The Nasdaq Stock Market, or minimum or maximum prices for trading have been fixed, or maximum ranges for prices have been required on any such exchange or (v) a material disruption in securities settlement in the United States or Europe that makes it impracticable to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any termination of this Agreement, the Company shall be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereof. Except as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of deliver the Securities from any of in the Underwriters merely because of such purchasemanner contemplated by the Prospectus.
Appears in 1 contract
Samples: Underwriting Agreement (Ubs Ag)
Effective Date of Agreement and Termination. This Agreement shall become effective upon the later of (i) execution and delivery of this Agreement and (ii) when notification of the effectiveness of the Registration Statement has been released by the parties heretoCommission. This Agreement may be terminated at any time on or prior to the Closing Date by you by written notice to the Company if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is given in the Registration Statement and the Prospectus, any Material Adverse Effect occursadverse change or development involving a prospective adverse change in the condition, whichfinancial or otherwise, of the Company or any of its subsidiaries or the earnings, affairs, or business prospects of the Company or any of its subsidiaries, whether or not arising in the ordinary course of business, which would, in the judgment of the Representativesyour judgment, makes make it impracticable or inadvisable to market the Securities or to enforce contracts for sale of Shares on the Securitiesterms and in the manner contemplated in the Prospectus, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in economic conditions or in the financial markets of the United States or elsewhereelsewhere that, or any other substantial national or international calamity or emergency if the effect of such outbreakin your judgment, escalation, calamity, crisis or emergency is material and adverse and would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to market the Securities or to enforce contracts for Shares on the sale of terms and in the Securitiesmanner contemplated in the Prospectus, (iii) any the suspension or material limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex EquitiesAmerican Stock Exchange, Inc. or the NASDAQ Stock National Association of Securities Dealers Automated Quotation System National Market System or any setting of minimum limitation on prices for trading securities on any such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United StatesNational Market System, (iv) the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which in your opinion materially and adversely affects, or will materially and adversely affect, the business or operations of the Company or any Subsidiary, (v) the declaration of a general banking moratorium by federal, either federal or New York State authorities or Maryland authorities, (vvi) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your judgment opinion has a material adverse effect on the financial markets in the United States. If on the Closing Date or on an Option Closing Date, as the case may be, any one or more of the Underwriters shall fail or refuse to purchase the Firm Shares or Additional Shares, as the case may be, which it or they have agreed to purchase hereunder on such date and wouldthe aggregate number of Firm Shares or Additional Shares, as the case may be, which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase is not more than one-tenth of the total number of Shares to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, in the judgment proportion which the number of Firm Shares set forth opposite its name in Schedule I bears to the Representativestotal number of Firm Shares which all the non-defaulting Underwriters, make it impracticable or inadvisable as the case may be, have agreed to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decreepurchase, or in such other promulgation proportion as you may specify, to purchase the Firm Shares or Additional Shares, as the case may be, which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase on such date; provided that in no event shall the number of Firm Shares or Additional Shares, as the case may be, which any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made Underwriter has agreed to purchase pursuant to Section 2 hereof be increased pursuant to this Agreement Section 11 by an amount in excess of one-ninth of such number of Firm Shares or Additional Shares, as the case may be, without the written consent of such Underwriter. If on the Closing Date or on an Option Closing Date, as the case may be, any Underwriter or Underwriters shall remain operative and in full force and effectfail or refuse to purchase Firm Shares or Additional Shares, as the case may be, and will survive delivery the aggregate number of and payment for Firm Shares or Additional Shares, as the Securitiescase may be, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securities) which such default occurs is more than one-tenth of the second paragraph aggregate number of Shares to be purchased on such date by all Underwriters and arrangements satisfactory to you and the applicable Company for purchase of such Shares are not made within 48 hours after such default, this Section 11 or because of the failure or refusal Agreement will terminate without liability on the part of any non-defaulting Underwriter and the Company to comply with the terms or to fulfill applicable Company. In any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any such case which does not result in termination of this Agreement, either you or the Company shall have the right to postpone the Closing Date or the applicable Option Closing Date, as the case may be, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement and the Prospectus or any other documents or arrangements may be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereofeffected. Except as otherwise provided, Any action taken under this Agreement has been and is made solely for the benefit paragraph shall not relieve any defaulting Underwriter from liability in respect of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in default of any such Underwriter under this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Samples: Underwriting Agreement (Donaldson Lufkin & Jenrette Inc /Ny/)
Effective Date of Agreement and Termination. This Agreement ------------------------------------------- shall become effective upon the execution and delivery of this Agreement by the parties heretoAgreement. This Agreement may be terminated at any time on or prior to the Closing Date by you by written notice to the Company if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is given in the Registration Statement and the Prospectus, any Material Adverse Effect occurs, which, in the judgment of the Representatives, makes it impracticable adverse change or inadvisable to market the Securities or to enforce contracts for sale of the Securities, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material development involving a prospective adverse change in the condition, financial markets or otherwise, of the United States Company or elsewhereany of its subsidiaries or the earnings, cash flows, business affairs, or business prospects of the Company or any other substantial national of its subsidiaries, whether or international calamity or emergency if not arising in the effect ordinary course of such outbreakbusiness, escalation, calamity, crisis or emergency which would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to market the Securities or to enforce contracts for the sale of the Securities, (ii) any outbreak or escalation of hostilities or other national or international calamity or crisis or change in economic conditions or in the financial markets of the United States or elsewhere that, in your judgment, is material and adverse and would, in your judgment, make it impracticable or inadvisable to market the Securities or to enforce contracts for the sale of the Securities (iii) any the suspension or material limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, American Stock Exchange or the NASDAQ Stock National Market System or any setting of minimum limitation on prices for trading securities on any such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United StatesNational Market System, (iv) the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which in your judgment materially and adversely affects, or will materially and adversely affect, the business or operations of the Company and its subsidiaries, taken as a whole, (v) the declaration of a general banking moratorium by federal, either federal or New York State authorities or Maryland authorities, (vvi) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your judgment has a material adverse effect on the financial markets in the United States, States and would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to proceed with the offering, sale or delivery of market the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities If on the Closing Date any one or (vi) more of the enactmentUnderwriters shall fail or refuse to purchase the Firm Securities which it or they have agreed to purchase hereunder on such date and the aggregate number of Firm Securities which such defaulting Underwriter or Underwriters, publicationas the case may be, decreeagreed but failed or refused to purchase is not more than one-tenth of the total number of Securities to be purchased on such date by all Underwriters, or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which wouldeach non- defaulting Underwriter shall be obligated severally, in the judgment proportion which the number of Firm Securities set forth opposite its name in Schedule I bears to the Representativestotal number of Firm Securities which all the non-defaulting Underwriters, as the case may be, have a Material Adverse Effect. The indemnities and contribution provisions and agreed to purchase, or in such other proportion as you may specify, to purchase the other agreementsFirm Securities which such defaulting Underwriter or Underwriters, representations and warranties as the case may be, agreed but failed or refused to purchase on such date; provided that in no event shall the number of the Company, its officers and directors and the Underwriters set forth in or made Firm Securities which any Underwriter has agreed to purchase pursuant to Section 3 hereof be increased pursuant to this Agreement Section 9 by an amount in excess of one-ninth of such number of Firm Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters shall remain operative and in full force and effect, and will survive delivery of and payment for the Securities, regardless of (i) any investigation, fail or statement as refuse to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the purchase Firm Securities and payment for them hereunder and (iii) termination the aggregate number of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (Firm Securities with respect to the Company’s securities) which such default occurs is more than one-tenth of the second paragraph aggregate number of Shares to be purchased on such date by all Underwriters, and arrangements satisfactory to you and the Company for purchase of such Securities are not made within 48 hours after such default, this Section 11 or because of the failure or refusal Agreement will terminate without liability on the part of any non- defaulting Underwriter and the Company to comply with the terms or to fulfill Company. In any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any such case which does not result in termination of this Agreement, either you or the Company shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement and the Prospectus or any other documents or arrangements may be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereofeffected. Except as otherwise provided, Any action taken under this Agreement has been and is made solely for the benefit paragraph shall not relieve any defaulting Underwriter from liability in respect of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in default of any such Underwriter under this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement shall become effective upon the execution and delivery of this Agreement by the parties heretohereof. This Agreement may be terminated at any time on or prior to the Closing Date by you the Initial Purchaser by written notice to the Company if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is given in the Offering Documents, any Material Adverse Effect occursmaterial adverse change or development involving a prospective material adverse change in the condition, whichfinancial or otherwise, of the Company or any of its subsidiaries or the earnings, affairs, or prospects of the Company or any of its subsidiaries, whether or not arising in the ordinary course of business, which would, in the judgment of the RepresentativesInitial Purchaser's sole judgment, makes make it impracticable or inadvisable to market the Securities or to enforce contracts for sale of Units on the Securitiesterms and in the manner contemplated in the Offering Documents, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in economic conditions or in the financial markets of the United States or elsewhere, or any other substantial national or international calamity or emergency if the effect of such outbreak, escalation, calamity, crisis or emergency wouldelsewhere that, in the judgment of the RepresentativesInitial Purchaser's sole judgment, make it impracticable or inadvisable to market the Securities or to enforce contracts for the sale of the Securities, (iii) any suspension or limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, the NASDAQ Stock Market or any setting of minimum prices for trading on such exchange or markets, or a is material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iv) any declaration of a general banking moratorium by federal, New York or Maryland authorities, (v) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that in your judgment has a material and adverse effect on the financial markets in the United States, and would, in the judgment of the RepresentativesInitial Purchaser's sole judgment, make it impracticable or inadvisable to proceed with market the offering, sale or delivery of the Securities Units on the terms and in the manner contemplated by this Agreementin the Offering Documents, (iii) the Pricing Disclosure Package and suspension or material limitation of trading in securities on the Prospectus New York Stock Exchange or to enforce contracts the Nasdaq National Market or limitation on prices for the sale of the Securities securities on any such exchange or national market system, (viiv) the enactment, publication, decree, decree or other promulgation of any federal federal, state or state foreign statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities Initial Purchaser's sole opinion materially and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made pursuant to this Agreement shall remain operative and in full force and effect, and will survive delivery of and payment for the Securities, regardless of (i) any investigationadversely affects, or statement as to will materially and adversely affect, the results thereof, made by business or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securities) of the second paragraph of this Section 11 or because of the failure or refusal on the part operations of the Company to comply with or its subsidiaries, (v) the terms declaration of a banking moratorium by either federal or to fulfill any of New York State authorities or (vi) the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any termination of this Agreement, the Company shall be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereof. Except as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser taking of any action by any federal, state, local or foreign government or agency in respect of its monetary or fiscal affairs which in the Securities from any of Initial Purchaser's sole opinion has a material adverse effect on the Underwriters merely because of such purchasefinancial markets in the United States.
Appears in 1 contract
Samples: Purchase Agreement (Interamericas Communications Corp)
Effective Date of Agreement and Termination. This Agreement shall become effective upon the later of (i) execution and delivery of this Agreement and (ii) when notification of the effectiveness of the Registration Statement has been released by the parties heretoCommission. This Agreement may be terminated at any time on or prior to the Closing Date by you by written notice to the Company if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is given in the Registration Statement and the Prospectus, any Material Adverse Effect occursmaterial adverse change or development involving a prospective material adverse change in the condition, whichfinancial or otherwise, of the Company and its subsidiaries or the earnings, affairs, or business prospects of the Company or any of its subsidiaries taken as a whole, whether or not arising in the ordinary course of business, which would, in the judgment of the Representativesyour judgment, makes make it impracticable or inadvisable to market the Securities or to enforce contracts for sale of on the Securitiesterms and in the manner contemplated in the Prospectus, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in economic conditions or in the financial markets of the United States or elsewhereelsewhere that, or any other substantial national or international calamity or emergency if the effect of such outbreakin your judgment, escalation, calamity, crisis or emergency is material and adverse and would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to market the Securities or to enforce contracts for Shares on the sale of terms and in the Securitiesmanner contemplated in the Prospectus, (iii) any the suspension or material limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, American Stock Exchange or the NASDAQ Stock Nasdaq National Market or any setting of minimum limitation on prices for trading securities on any such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United StatesNasdaq National Market, (iv) the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which in your opinion materially and adversely affects, or will materially and adversely affect, the business or operations of the Company or any of its subsidiaries, (v) the declaration of a general banking moratorium by federal, either federal or New York State authorities or Maryland authorities, (vvi) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your judgment opinion has a material adverse effect on the financial markets in the United States. If on the Closing Date or any Option Closing Date any one or more of the Underwriters shall fail or refuse to purchase the Securities which it or they have agreed to purchase hereunder on such date and the aggregate number of Securities which such defaulting Underwriter or Underwriters, and wouldas the case may be, agreed but failed or refused to purchase is not more than one-tenth of the total number of Securities to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, in the judgment proportion which the number of Securities set forth opposite its name in Schedule I bears to the Representativestotal number of Securities which all the non-defaulting Underwriters, make it impracticable as the case may be, have agreed to purchase, or inadvisable in such other proportion as you may specify, to proceed with the offering, sale or delivery of purchase the Securities which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase on such date; provided that in no event shall the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or number of Securities which any Underwriter has agreed to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decree, or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made purchase pursuant to Section 2 hereof be increased pursuant to this Agreement shall remain operative and Section 9 by an amount in full force and effect, and will survive delivery excess of and payment for one-ninth of such number of Securities without the Securities, regardless written consent of (i) any investigation, or statement as to such Underwriter. If on the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors Closing Date or any controlling person thereof, (ii) acceptance of the Option Closing Date any Underwriter or Underwriters shall fail or refuse to purchase Securities and payment for them hereunder and (iii) termination the aggregate number of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (Securities with respect to the Company’s securities) which such default occurs is more than one-tenth of the second paragraph aggregate number of Securities to be purchased on such date by all Underwriters and arrangements satisfactory to you and the Company for purchase of such Securities are not made within 48 hours after such default, this Section 11 or because of the failure or refusal Agreement will terminate without liability on the part of any non-defaulting Underwriter and the Company to comply with the terms or to fulfill Company. In any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any such case which does not result in termination of this Agreement, either you or the Company shall have the right to postpone the Closing Date or such Option Closing Date, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement and the Prospectus or any other documents or arrangements may be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereofeffected. Except as otherwise provided, Any action taken under this Agreement has been and is made solely for the benefit paragraph shall not relieve any defaulting Underwriter from liability in respect of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in default of any such Underwriter under this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Effective Date of Agreement and Termination. (a) This Agreement shall become effective upon the execution and delivery of this Agreement by the parties hereto. .
(b) This Agreement may be terminated at any time on or prior to the Closing Date by you the Initial Purchasers by notice to the Company if any of the following has occurred: (i) on subsequent to the date of this Agreement, there has been any material adverse change, or after any development involving a prospective material adverse change, in the Applicable Timeassets, any Material Adverse Effect occursproperties, whichbusiness, results of operations, condition (financial or otherwise) or prospects, whether or not arising in the ordinary course of business, of the Company and its subsidiaries, taken as a whole that, in the judgment of any Initial Purchaser, materially impairs the Representatives, makes it impracticable or inadvisable to market the Securities or to enforce contracts for sale investment quality of the Securities, Senior Discount Notes; (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in the financial markets of the United States or elsewhere, or any other substantial national or international calamity or emergency emergency, if the effect of such outbreak, escalation, calamity, crisis or emergency would, in the judgment of the Representativesany Initial Purchaser, make it impracticable or inadvisable to market the Securities Senior Discount Notes or to enforce contracts for the sale of the Securities, Senior Discount Notes; (iii) any suspension or limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, American Stock Exchange or in the NASDAQ Stock Market over-the-counter markets or any setting of minimum prices for trading on such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, ; (iv) any declaration of a general banking moratorium by federal, either federal or New York or Maryland authorities, ; (v) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that that, in your the judgment of any Initial Purchaser, has a material adverse effect on the financial markets in the United States, States and would, in the judgment of the Representativesany Initial Purchaser, make it impracticable or inadvisable to proceed with market the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus Senior Discount Notes or to enforce contracts for the sale of the Securities or Senior Discount Notes; (vi) the enactment, publication, decree, or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which that, in the judgment of any Initial Purchaser materially and adversely affects the business or operations of the Company, or any of its subsidiaries; or (vii) any securities of the Company, or any of its subsidiaries shall have been downgraded or placed on any "watch list" for possible downgrading by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act); PROVIDED, HOWEVER, that in the case of such "watch list" placement, termination shall be permitted only if such placement would, in the judgment of Bear Xxxxxxx, make it impracticable or inadvisable to market the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and Senior Discount Notes or to enforce contracts for the other agreements, representations and warranties sale of the Company, its officers and directors and Senior Discount Notes or materially impair the Underwriters set forth in or made investment quality of the Senior Discount Notes.
(c) Any notice of termination pursuant to this Agreement Section 12 shall remain operative be by telephone or telephonic facsimile and confirmed in full force and effect, and will survive delivery of and payment for the Securities, regardless of writing by letter.
(id) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters Initial Purchasers pursuant to clauses paragraph (ib) or (iii) (with respect to the Company’s securities) of the second paragraph of this Section 11 12 or because of the failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, the Company agrees to reimburse you the Initial Purchasers for all out-of-pocket expenses (including, without limitation, the fees and disbursements of counsel) incurred by youthe Initial Purchasers. Notwithstanding any termination of this Agreement, the Company shall be liable for all expenses which they have it has agreed to pay pursuant to Section 5(e4(f) hereof. Except as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement shall become effective upon the execution and delivery of this Agreement by the parties heretoAgreement. This Agreement may be terminated at any time on or prior to the Closing Date by you the Underwriter by written notice to the Company if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is given in the Registration Statement and the Prospectus and since the Time of Sale, any Material Adverse Effect occursmaterial adverse change or development involving a prospective material adverse change (including, whichwithout limitation, the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority) in the condition, financial or otherwise, of the Company and its subsidiaries taken as a whole or the earnings, affairs, or business prospects of the Company and its subsidiaries taken as a whole, whether or not arising in the ordinary course of business, which would, in the judgment of the RepresentativesUnderwriter, makes make it impracticable or inadvisable to market the Securities or to enforce contracts for sale of on the Securitiesterms and in the manner contemplated in the Prospectus, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis (including, without limitation, an act of terrorism) or material adverse change in economic conditions or in the financial markets of the United States or elsewhereelsewhere that, or any other substantial national or international calamity or emergency if in the effect judgment of such outbreakthe Underwriter, escalation, calamity, crisis or emergency is material and adverse and would, in the judgment of the RepresentativesUnderwriter, make it impracticable or inadvisable to market the Securities or to enforce contracts for on the sale of terms and in the Securitiesmanner contemplated in the Prospectus, (iii) any the suspension or material limitation of trading in the Company’s securities generally, or in trading generally in the securities of the Company listed, on the New York Stock Exchange, the NYSE Amex EquitiesAmerican or The Nasdaq Stock Market, the NASDAQ Stock Market or limitation on prices on any setting of minimum prices for trading on such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United Statesexchange, (iv) any declaration of a general banking moratorium material disruption in securities settlement that makes it impracticable to deliver the Securities in the manner contemplated by federalthe Prospectus, New York or Maryland authorities, (v) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your judgment the opinion of the Underwriter has a material adverse effect on the financial markets in the United States, and would, in the judgment of the Representatives, make it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decree, or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made pursuant to this Agreement shall remain operative and in full force and effect, and will survive delivery of and payment for the Securities, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securities) of the second paragraph of this Section 11 or because of the failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any termination of this Agreement, the Company shall be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereof. Except as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Samples: Underwriting Agreement (Capital One Financial Corp)
Effective Date of Agreement and Termination. This Agreement ------------------------------------------- shall become effective upon the later of (i) execution and delivery of this Agreement and (ii) when notification of the effectiveness of the Registration Statement has been released by the parties heretoCommission. This Agreement may be terminated at any time on or prior to the Closing Date by you by written notice to the Company if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is given in the Registration Statement and the Prospectus, any Material Adverse Effect occursmaterial adverse change or development involving a prospective material adverse change in the condition, whichfinancial or otherwise, of the Company or the earnings, affairs, or business prospects of the Company, whether or not arising in the ordinary course of business, which would, in the judgment of the Representativesyour judgment, makes make it impracticable or inadvisable to market the Securities or to enforce contracts for sale of Shares on the Securitiesterms and in the manner contemplated in the Prospectus, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in economic conditions or in the financial markets of the United States or elsewhereelsewhere that, or any other substantial national or international calamity or emergency if the effect of such outbreakin your judgment, escalation, calamity, crisis or emergency is material and adverse and would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to market the Securities or to enforce contracts for Shares on the sale of terms and in the Securitiesmanner contemplated in the Prospectus, (iii) any the suspension or material limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock ExchangeNYSE, the NYSE Amex Equities, American Stock Exchange or the NASDAQ Stock National Market System or any setting of minimum limitation on prices for trading securities on any such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United StatesNational Market System, (iv) the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which in your opinion materially and adversely affects, or will materially and adversely affect, the business or operations of the Company, (v) the declaration of a general banking moratorium by federal, either federal or New York State authorities or Maryland authorities, (vvi) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your judgment opinion has a material adverse effect on the financial markets in the United States. If on the Closing Date or on an Option Closing Date, as the case may be, any one or more of the Underwriters shall fail or refuse to purchase the Firm Shares or Additional Shares, as the case may be, which it or they have agreed to purchase hereunder on such date and wouldthe aggregate number of Firm Shares or Additional Shares, as the case may be, which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase is not more than one-tenth of the total number of Shares to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, in the judgment proportion which the number of Firm Shares set forth opposite its name in Schedule I bears to the Representativestotal number of Firm Shares which all the non-defaulting Underwriters, make it impracticable or inadvisable as the case may be, have agreed to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decreepurchase, or in such other promulgation proportion as you may specify, to purchase the Firm Shares or Additional Shares, as the case may be, which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase on such date; provided that in no event shall -------- the number of Firm Shares or Additional Shares, as the case may be, which any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made Underwriter has agreed to purchase pursuant to Section 2 hereof be increased pursuant to this Agreement Section 9 by an amount in excess of one-ninth of such number of Firm Shares or Additional Shares, as the case may be, without the written consent of such Underwriter. If on the Closing Date or on an Option Closing Date, as the case may be, any Underwriter or Underwriters shall remain operative and in full force and effectfail or refuse to purchase Firm Shares, or Additional Shares, as the case may be, and will survive delivery the aggregate number of and payment for Firm Shares or Additional Shares, as the Securitiescase may be, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securities) which such default occurs is more than one-tenth of the second paragraph aggregate number of Shares to be purchased on such date by all Underwriters and arrangements satisfactory to you and the Company for purchase of such Shares are not made within 48 hours after such default, this Section 11 or because of the failure or refusal Agreement will terminate without liability on the part of any non-defaulting Underwriter and the Company to comply with the terms or to fulfill Company. In any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any such case which does not result in termination of this Agreement, either you or the Company shall have the right to postpone the Closing Date or the applicable Option Closing Date, as the case may be, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement and the Prospectus or any other documents or arrangements may be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereofeffected. Except as otherwise provided, Any action taken under this Agreement has been and is made solely for the benefit paragraph shall not relieve any defaulting Underwriter from liability in respect of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in default of any such Underwriter under this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Samples: Underwriting Agreement (Hospitality Properties Trust)
Effective Date of Agreement and Termination. This Agreement shall ------------------------------------------- become effective upon the later of (i) execution and delivery of this Agreement and (ii) when notification of the effectiveness of the Registration Statement has been released by the parties heretoCommission. This Agreement may be terminated at any time on or prior to the Closing Date by you by written notice to the Company and the Selling Stockholder if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is given in the Registration Statement and the Prospectus, any Material Adverse Effect occursmaterial adverse change or development involving a prospective material adverse change in the condition, whichfinancial or otherwise, of the Company and its subsidiaries, taken as a whole, or the earnings, affairs, or business prospects of the Company and its subsidiaries, taken as a whole, whether or not arising in the ordinary course of business, which would, in the judgment of the Representativesyour judgment, makes make it impracticable or inadvisable to market the Securities or to enforce contracts for sale of Shares on the Securitiesterms and in the manner contemplated in the Prospectus, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in economic conditions or in the financial markets of the United States or elsewhereelsewhere that, or any other substantial national or international calamity or emergency if the effect of such outbreakin your judgment, escalation, calamity, crisis or emergency is material and adverse and would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to market the Securities or to enforce contracts for Shares on the sale of terms and in the Securitiesmanner contemplated in the Prospectus, (iii) any the suspension or material limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, American Stock Exchange or the NASDAQ Stock Nasdaq National Market or any setting of minimum limitation on prices for trading securities on any such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United StatesNational Market, (iv) any the declaration of a general banking moratorium by federal, either federal or New York State authorities or Maryland authorities, (v) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your judgment opinion has a material adverse effect on the financial markets in the United States. If on the Closing Date or on an Option Closing Date, as the case may be, any one or more of the Underwriters shall fail or refuse to purchase the Firm Shares or Additional Shares, as the case may be, which it or they have agreed to purchase hereunder on such date and wouldthe aggregate number of Firm Shares or Additional Shares, as the case may be, which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase is not more than one-tenth of the total number of Shares to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, in the judgment proportion which the number of Firm Shares set forth opposite its name in Schedule I bears to the Representativestotal number of Firm Shares which all the non-defaulting Underwriters, make it impracticable or inadvisable as the case may be, have agreed to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decreepurchase, or in such other promulgation proportion as you may specify, to purchase the Firm Shares or Additional Shares, as the case may be, which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase on such date; provided that in no event shall the number of Firm Shares -------- or Additional Shares, as the case may be, which any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made Underwriter has agreed to purchase pursuant to Section 2 hereof be increased pursuant to this Agreement Section 10 by an amount in excess of one-ninth of such number of Firm Shares or Additional Shares, as the case may be, without the written consent of such Underwriter. If on the Closing Date or on an Option Closing Date, as the case may be, any Underwriter or Underwriters shall remain operative and in full force and effectfail or refuse to purchase Firm Shares, or Additional Shares, as the case may be, and will survive delivery the aggregate number of and payment for Firm Shares or Additional Shares, as the Securitiescase may be, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securities) which such default occurs is more than one-tenth of the second paragraph aggregate number of Shares to be purchased on such date by all Underwriters and arrangements satisfactory to you and the applicable Sellers for purchase of such Shares are not made within 48 hours after such default, this Section 11 or because of the failure or refusal Agreement will terminate without liability on the part of any non-defaulting Underwriter and the Company to comply with the terms or to fulfill Selling Stockholder. In any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any such case which does not result in termination of this Agreement, either you or the Company Selling Stockholder shall have the right to postpone the Closing Date or the applicable Option Closing Date, as the case may be, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement and the Prospectus or any other documents or arrangements may be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereofeffected. Except as otherwise provided, Any action taken under this Agreement has been and is made solely for the benefit paragraph shall not relieve any defaulting Underwriter from liability in respect of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in default of any such Underwriter under this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement shall become effective upon at the execution time that the Company, the Guarantor and delivery the Initial Purchasers execute this Agreement.
(a) DLJ, on behalf of the Initial Purchasers, may terminate this Agreement by the parties hereto. This Agreement may be terminated at any time on or prior to the Closing Date by you by notice to the Company if any of the following has occurred: :
(i) on since the respective dates as of which information is given in the Offering Memorandum and except as disclosed or after the Applicable Timecontemplated therein, any adverse change or development involving a prospective adverse change which would cause a Material Adverse Effect occursEffect, whichwhether or not arising in the ordinary course of business, which would, in the DLJ's sole judgment of the Representatives, makes make it impracticable or inadvisable to market the Securities or to enforce contracts for sale of the Securities, Series A Notes;
(ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in the financial markets of the United States or elsewhereStates, or any other substantial national or international calamity or emergency emergency, if the effect of such outbreak, escalation, calamity, crisis crisis, change or emergency would, in the judgment of the RepresentativesDLJ's sole judgment, make it impracticable or inadvisable to market the Securities Series A Notes or to enforce contracts for the sale of the Securities, securities;
(iii) any suspension or limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, American Stock Exchange or the NASDAQ Stock Nasdaq National Market or any setting of minimum general limitation on prices for trading securities on any such exchange or marketsthe Nasdaq National Market if the effect of such suspension or limitation would, in DLJ's sole judgment, make it impracticable or a material disruption has occurred in commercial banking or securities settlement or clearance services in inadvisable to market the United States, Series A Notes;
(iv) the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which in DLJ's sole judgment causes or will cause a Material Adverse Effect;
(v) the declaration of a general banking moratorium by federal, either federal or New York or Maryland State authorities, ; (vvi) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your DLJ's sole judgment has a material adverse effect on the financial markets in the United States, States and would, in the judgment of the Representatives, make makes it impracticable or inadvisable to proceed with sell the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decree, or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made pursuant to this Agreement shall remain operative and in full force and effect, and will survive delivery of and payment for the Securities, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securities) of the second paragraph of this Section 11 or because of the failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any termination of this Agreement, the Company shall be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereof. Except as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.Series A Notes;
Appears in 1 contract
Samples: Purchase Agreement (Cellular Communications of Puerto Rico Inc)
Effective Date of Agreement and Termination. This Agreement shall become effective upon the execution and delivery of this Agreement by the parties heretoAgreement. This Agreement may be terminated at any time on or prior to the Closing Date by you the Underwriter by written notice to the Company if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is given in the Registration Statement and Prospectus and since the Time of Sale, any Material Adverse Effect occursmaterial adverse change or development involving a prospective material adverse change (including, whichwithout limitation, the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority) in the condition, financial or otherwise, of the Company and its subsidiaries taken as a whole or the earnings, affairs, or business prospects of the Company and its subsidiaries taken as a whole, whether or not arising in the ordinary course of business, which would, in the judgment of the RepresentativesUnderwriter, makes make it impracticable or inadvisable to market the Securities or to enforce contracts for sale of Shares on the Securitiesterms and in the manner contemplated in the Prospectus, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis (including, without limitation, an act of terrorism) or material adverse change in economic conditions or in the financial markets of the United States or elsewhereelsewhere that, or any other substantial national or international calamity or emergency if in the effect judgment of such outbreakthe Underwriter, escalation, calamity, crisis or emergency is material and adverse and would, in the judgment of the RepresentativesUnderwriter, make it impracticable or inadvisable to market the Securities or to enforce contracts for Shares on the sale of terms and in the Securitiesmanner contemplated in the Prospectus, (iii) any the suspension or material limitation of trading in the Company’s securities generally, or in trading generally in the securities of the Company listed, on the New York Stock Exchange, the NYSE Amex Equities, the American Stock Exchange or The NASDAQ Stock Market or Market, limitation on prices on any setting of minimum prices for trading on such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United Statesexchange, (iv) any declaration of a general banking moratorium material disruption in securities settlement that makes it impracticable to deliver the Shares in the manner contemplated by federalthe Prospectus, New York or Maryland authorities, (v) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your judgment the opinion of the Underwriter has a material adverse effect on the financial markets in the United States, and would, in the judgment of the Representatives, make it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decree, or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made pursuant to this Agreement shall remain operative and in full force and effect, and will survive delivery of and payment for the Securities, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securities) of the second paragraph of this Section 11 or because of the failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any termination of this Agreement, the Company shall be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereof. Except as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Samples: Underwriting Agreement (Capital One Financial Corp)
Effective Date of Agreement and Termination. This Agreement shall become effective upon the later of (i) the execution and delivery of this Agreement or (ii) when notification of the effectiveness of the Registration Statement has been released by the parties heretoCommission. This Agreement may be terminated at any time on or prior to the Closing Date by you by written notice to the Company if any of the following has occurred: :
(ia) on or after Since the Applicable Timerespective dates as of which information is given in the Registration Statement and the Prospectus, any adverse change or development involving a prospective adverse change which would cause a Material Adverse Effect occursEffect, whichon the earnings, affairs, or business prospects of the Company or any of its subsidiaries, whether or not arising in the ordinary course of business, which would, in the judgment of the Representativesyour judgment, makes make it impracticable or inadvisable to market the Securities or to enforce contracts for sale of on the Securities, terms and in the manner contemplated in the Prospectus;
(iib) any new Any outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in the financial markets of the United States or elsewhereeconomic conditions, or any other substantial national or international calamity or emergency if the effect of such outbreak, escalation, calamity, crisis or emergency change on the financial markets of the United States or elsewhere would, in the judgment of the Representativesyour judgment, be material and adverse and make it impracticable or inadvisable to market the Securities or to enforce contracts for on the sale of terms and in the Securities, manner contemplated in the Prospectus;
(iiic) any The suspension or material limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, American Stock Exchange or the NASDAQ Stock Nasdaq National Market or any setting of minimum the limitation on prices for trading securities on any such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, National Market System;
(ivd) any declaration of a general banking moratorium by federal, New York or Maryland authorities, (v) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that in your judgment has a material adverse effect on the financial markets in the United States, and would, in the judgment of the Representatives, make it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (vi) the The enactment, publication, decree, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have your opinion causes or will cause a Material Adverse Effect. ;
(e) The indemnities and contribution provisions and declaration of a banking moratorium by either federal or New York State authorities;
(f) The taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs which in your opinion has a material adverse effect on the other agreements, representations and warranties financial markets in the United States; or
(g) Any of the Company's securities shall have been downgraded or placed on any "watch list" for possible downgrading by any nationally recognized statistical rating organization, its officers and directors and provided that in the Underwriters set forth case of such "watch list" placement, termination shall be permitted only if such placement would, in your judgment, make it impracticable or made pursuant inadvisable to this Agreement shall remain operative and in full force and effect, and will survive delivery of and payment market the Securities or to enforce contracts for the sale of the Securities or materially impair the investment quality of the Securities, regardless of (i) any investigation, or statement as to . If on the results thereof, made by or on behalf of any Closing Date either of the Underwriters shall fail or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of refuse to purchase the Securities which it has agreed to purchase hereunder on such date and payment arrangements satisfactory to the non-defaulting Underwriter and the Company for them hereunder and (iii) termination purchase of this Agreement. If such Securities are not made within 48 hours after such default, this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securities) of the second paragraph of this Section 11 or because of the failure or refusal will terminate without liability on the part of the Company to comply with the terms or to fulfill such non-defaulting Underwriter. In any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any such case that does not result in termination of this Agreement, such non-defaulting Underwriter or the Company shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement and the Prospectus or any other documents or arrangements may be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereofeffected. Except as otherwise provided, Any action taken under this Agreement has been and is made solely for the benefit paragraph shall not relieve any defaulting Underwriter from liability in respect of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in default by it under this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement shall become effective upon the execution and delivery of this Agreement by the parties hereto. This Agreement may be terminated at any time on or prior to the Closing Date by you the Initial Purchaser by written notice from the Initial Purchaser to the Company Issuers if any of the following has occurred: (i) the Issuers or Parent shall have failed, refused or been unable to perform in any material respect any agreement on or after the Applicable Time, any Material Adverse Effect occurs, which, in the judgment of the Representatives, makes it impracticable or inadvisable its part to market the Securities or to enforce contracts for sale of the Securitiesbe performed hereunder, (ii) any new other condition to the obligations of the Initial Purchaser hereunder as provided in Section 9 is not fulfilled when and as required in any material respect, (iii) any outbreak or material escalation of hostilities hostilities, any declaration of war by the United States, any other calamity, emergency or other national or international calamity or crisis or crisis, any material adverse change in economic conditions in or the financial markets of the United States or elsewhere, elsewhere or any other substantial change or development involving a prospective change in national or international calamity political, financial or emergency if economic conditions, in each case the effect of such outbreak, escalation, calamity, crisis or emergency wouldwhich could make it, in the judgment of the RepresentativesInitial Purchaser's sole judgment, make it impracticable or inadvisable to market or proceed with the Securities offering or delivery of the Series A Notes on the terms and in the manner contemplated in the Offering Circular or to enforce contracts for the sale of any of the SecuritiesSeries A Notes, (iiiiv) any the suspension or limitation of trading in the Company’s securities or in trading generally in securities or other instruments on the New York Stock Exchange, the NYSE Amex EquitiesAmerican Stock Exchange, the NASDAQ Stock Chicago Board of Options Exchange, the Chicago Mercantile Exchange, the Chicago Board of Trade or the Nasdaq National Market or any setting of minimum limitations on prices for trading securities or other instruments on any such exchange or marketson the Nasdaq National Market, (v) the enactment, publication, decree or other promulgation after the date hereof of any federal or state statute, regulation, rule or order of any court or other governmental authority that in the Initial Purchaser's reasonable opinion materially and adversely affects, or a material disruption has occurred in commercial banking could materially and adversely affect, the properties, business, prospects, operations, earnings, assets, liabilities or securities settlement condition (financial or clearance services in otherwise) of the United StatesIssuers or Parent, (ivvi) any the declaration of a general banking moratorium by federal, either federal or New York State authorities or Maryland authorities, (vvii) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your judgment the Initial Purchaser's reasonable opinion has a material adverse effect on the financial markets in the United States, and would, in the judgment of the Representatives, make it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decree, or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made pursuant to this Agreement shall remain operative and in full force and effect, and will survive delivery of and payment for the Securities, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securities) of the second paragraph of this Section 11 or because of the failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any termination of this Agreement, the Company shall be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereof. Except as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Samples: Purchase Agreement (Interdent Inc)
Effective Date of Agreement and Termination. This Agreement shall become effective upon the later of (i) execution and delivery of this Agreement Agreement, (ii) when notification of the effectiveness of the Registration Statement has been released by the parties heretoCommission and (iii) if a post-effective amendment to the Registration Statement has been filed (including any post-effective amendment required to be filed pursuant to Rule 430A) or a new or additional registration statement has been filed (including any new or additional registration statement required to be filed pursuant to Rule 462 under the Act), the effectiveness of such post-effective amendment or new or additional registration statement. Until this Agreement becomes effective as aforesaid, it may be terminated by the Company by notifying the Underwriters or by the Underwriters by notifying the Company. This Agreement may be terminated at any time on or after it becomes effective and prior to the Closing Date by you by written notice to the Company if any of the following has occurred: (i) on or after the Applicable Time, any Material Adverse Effect occurs, which, in the judgment of the Representatives, makes it impracticable or inadvisable to market the Securities or to enforce contracts for sale of the Securities, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in economic conditions or in the financial markets of the United States or elsewhereelsewhere that, or any other substantial national or international calamity or emergency if the effect of such outbreakin your judgment, escalation, calamity, crisis or emergency is material and adverse and would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to market the Securities Shares on the terms and in the manner contemplated in the Prospectus, or to enforce contracts for (ii) the sale of the Securities, (iii) any suspension or material limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, American Stock Exchange or the NASDAQ Stock Nasdaq National Market or any setting of minimum limitation on prices for trading securities on any such exchange or marketsthe Nasdaq National Market, (iii) the suspension of trading of any securities of the Company on any exchange or in the over-the-counter market, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iv) any the declaration of a general banking moratorium by federal, either federal or New York or Maryland State authorities, (v) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that in your judgment has a material adverse effect . If on the financial markets in Closing Date or on the United StatesOption Closing Date, as the case may be, any one or more of the Underwriters shall fail or refuse to purchase the Firm Shares or Additional Shares, as the case may be, that it or they have agreed to purchase hereunder on such date, and wouldthe aggregate number of Firm Shares or Additional Shares, as the case may be, that such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase is not more than one-tenth of the total number of Firm Shares or Additional Shares, as the case may be, to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, in the judgment proportion that the number of Firm Shares set forth opposite its name in SCHEDULE I bears to the Representativestotal number of Firm Shares that all the non-defaulting Underwriters, make it impracticable or inadvisable as the case may be, have agreed to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decreepurchase, or in such other promulgation proportion as you may specify, to purchase the Firm Shares or Additional Shares, as the case may be, that such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase on such date; PROVIDED that in no event shall the number of Firm Shares or Additional Shares, as the case may be, that any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made Underwriter has agreed to purchase pursuant to Section 2 hereof be increased pursuant to this Agreement shall remain operative and Section 9 by an amount in full force and effectexcess of one-ninth of such number of Firm Shares or Additional Shares, and will survive delivery as the case may be, without the written consent of and payment for the Securities, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreementsuch Underwriter. If this Agreement on the Closing Date any Underwriter or Underwriters shall be terminated by fail or refuse to purchase Firm Shares and the Underwriters pursuant to clauses (i) or (iii) (aggregate number of Firm Shares with respect to the Company’s securities) which such default occurs is more than one-tenth of the second paragraph aggregate number of Firm Shares to be purchased on such date by all Underwriters and arrangements satisfactory to you and the Company for purchase of such Firm Shares are not made within 48 hours after such default, this Section 11 or because of the failure or refusal Agreement will terminate without liability on the part of any non-defaulting Underwriter or the Company to comply with the terms or to fulfill Company. In any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any such case which does not result in termination of this Agreement, either you or the Company shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement and the Prospectus or any other documents or arrangements may be liable for all expenses effected. If, on an Option Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase Additional Shares and the aggregate number of Additional Shares with respect to which they have agreed such default occurs is more than one-tenth of the aggregate number of Additional Shares to pay pursuant to Section 5(e) hereof. Except as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the Companypurchased on such date, the Underwriters, non-defaulting Underwriters shall have the option to (i) terminate their obligation hereunder to purchase such Additional Shares or (ii) purchase not less than the number of Additional Shares that such non-defaulting Underwriters would have been obligated to purchase on such date in the absence of such default. Any action taken under this paragraph shall not relieve any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided defaulting Underwriter from liability in respect of any default of any such Underwriter under this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement shall become effective upon the execution and delivery of this Agreement by the parties heretohereof. This Agreement may be terminated at any time on or prior to the Closing Date by you by notice to the Company Anvil if any of the following has occurred: (i) on or after subsequent to the Applicable Timedate information is provided in the Offering Memorandum, any Material Adverse Effect occurs, Change which, in your judgment, materially impairs the judgment investment quality of the Representatives, makes it impracticable or inadvisable to market the Securities or to enforce contracts for sale any of the Securities, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in the financial markets of the United States or elsewhere, or any other substantial national or international calamity or emergency if the effect of such outbreak, escalation, calamity, crisis crisis, material adverse change or emergency would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to market any of the Securities or to enforce contracts for the sale of any of the Securities, (iii) any suspension or limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, Exchange or in the NYSE Amex Equities, the NASDAQ Stock Nasdaq National Market System or any setting of minimum prices for trading on such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iv) any declaration of a general banking moratorium by federal, either federal or New York or Maryland authorities, (v) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that in your judgment has a material adverse effect on the financial markets in the United States, and would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to proceed with the offering, sale or delivery market any of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of any of the Securities or (vi) the enactment, publication, decree, or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which wouldwhich, in the judgment of the Representativesyour judgment, would have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the CompanyHoldings, its their respective officers and directors and of the Underwriters Initial Purchaser set forth in or made pursuant to this Agreement shall remain operative and in full force and effect, and will survive delivery of and payment for the SecuritiesUnits regardless, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any either of the Underwriters Initial Purchaser or by or on behalf of Holdings, the Company, its officers or directors of Holdings or any the controlling person thereofof Holdings, (ii) acceptance of the Securities Units and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters Initial Purchaser pursuant to clauses clause (i) or (iii) (with respect to the Company’s securities) of the second paragraph of this Section 11 9 or because of the failure or refusal on the part of the Company Holdings or Anvil to comply with the terms or to fulfill any of the conditions of this Agreement, the Company Anvil agrees to reimburse you for all out-of-pocket expenses (including the fees and disbursements of counsel) incurred by you. Notwithstanding any termination of this Agreement, the Company Anvil shall be liable for all expenses which they have it has agreed to pay pursuant to Section 5(e4(f) hereof. If the transactions contemplated hereby are consummated, each of the parties shall pay its own expenses in connection with the offering and sale of the Units, including the costs and expenses of its counsel, except as otherwise provided in Section 4(f) hereof. Except as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the CompanyHoldings, the UnderwritersInitial Purchaser, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “"successors and assigns” " shall not include a purchaser of any of the Securities Units from any of the Underwriters Initial Purchaser merely because of such purchase.
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement shall become ------------------------------------------- effective upon the execution and delivery of this Agreement by the parties hereto. This Agreement may be terminated at any time on or prior to the Closing Date by you by written notice to the Company Sellers if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is given in the Registration Statement and the Prospectus, any Material Adverse Effect occursmaterial adverse change or development involving a prospective material adverse change in the condition, whichfinancial or otherwise, of the Company and the Subsidiary, taken as a whole, or the earnings, affairs, or business prospects of the Company and the Subsidiary, taken as a whole, whether or not arising in the ordinary course of business, which would, in the judgment of the Representativesyour judgment, makes make it impracticable or inadvisable to market the Securities or to enforce contracts for sale of Shares on the Securitiesterms and in the manner contemplated in the Prospectus, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in economic conditions or in the financial markets of the United States or elsewhereelsewhere that, or any other substantial national or international calamity or emergency if the effect of such outbreakin your judgment, escalation, calamity, crisis or emergency is material and adverse and would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to market the Securities or to enforce contracts for Shares on the sale of terms and in the Securitiesmanner contemplated in the Prospectus, (iii) any the suspension or material limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, American Stock Exchange or the NASDAQ Stock National Market or any setting of minimum prices for trading on such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United StatesSystem, (iv) the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which in your opinion materially and adversely affects, or will materially and adversely affect, the business or operations of the Company or the Subsidiary, (v) the declaration of a general banking moratorium by federal, either federal or New York State authorities or Maryland authorities, (vvi) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your judgment opinion has a material adverse effect on the financial markets in the United States. If on the Closing Date or on an Option Closing Date, as the case may be, any one or more of the Underwriters shall fail or refuse to purchase the Firm Shares or Additional Shares, as the case may be, which it or they have agreed to purchase hereunder on such date and wouldthe aggregate number of Firm Shares or Additional Shares, as the case may be, which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase is not more than one-tenth of the total number of Shares to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, in the judgment proportion which the number of Firm Shares set forth opposite its name in Schedule I bears to the Representativestotal number of Firm Shares which all the non-defaulting Underwriters, make it impracticable or inadvisable as the case may be, have agreed to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decreepurchase, or in such other promulgation proportion as you may specify, to purchase the Firm Shares or Additional Shares, as the case may be, which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase on such date; provided that in no event shall the number of Firm Shares or Additional Shares, as the case may be, which any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made Underwriter has agreed to purchase pursuant to Section 2 hereof be increased pursuant to this Agreement shall remain operative and Section 10 by an amount in full force and effectexcess of one-ninth of such number of Firm Shares or Additional Shares, and will survive delivery as the case may be, without the written consent of and payment for the Securities, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreementsuch Underwriter. If this Agreement on the Closing Date any Underwriter or Underwriters shall be terminated by fail or refuse to purchase Firm Shares and the Underwriters pursuant to clauses (i) or (iii) (aggregate number of Firm Shares, with respect to the Company’s securities) which such default occurs is more than one-tenth of the second paragraph aggregate number of Shares to be purchased on such date by all Underwriters and arrangements satisfactory to you and the applicable Sellers for purchase of such Shares are not made within 48 hours after such default, this Section 11 or because of the failure or refusal Agreement will terminate without liability on the part of any non-defaulting Underwriter and the Company to comply with the terms or to fulfill applicable Sellers. In any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any such case which does not result in termination of this Agreement, either you or the Company Sellers shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement and the Prospectus or any other documents or arrangements may be liable for all expenses effected. If, on an Option Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase Additional Shares and the aggregate number of Additional Shares with respect to which they have agreed such default occurs is more than one-tenth of the aggregate number of Additional Shares to pay pursuant to Section 5(e) hereof. Except as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the Companypurchased on such date, the Underwriters, non-defaulting Underwriters shall have the option to (i) terminate their obligation hereunder to purchase such Additional Shares or (ii) purchase not less than the number of Additional Shares that such non-defaulting Underwriters would have been obligated to purchase on such date in the absence of such default. Any action taken under this paragraph shall not relieve any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided defaulting Underwriter from liability in respect of any default of any such Underwriter under this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement shall ------------------------------------------- become effective upon the execution and delivery of this Agreement by the parties heretohereof. This Agreement may be terminated at any time on or prior to the Closing Date by you by notice to the Company if any of the following has occurred: (i) on or after subsequent to the Applicable Timedate information is provided in the Offering Memorandum, any Material Adverse Effect occurs, Change which, in your judgment, materially impairs the judgment investment quality of any of the Representatives, makes it impracticable or inadvisable to market the Securities or to enforce contracts for sale of the SecuritiesSeries A Notes, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in the financial markets of the United States or elsewhere, or any other substantial national or international calamity or emergency if the effect of such outbreak, escalation, calamity, crisis crisis, material adverse change or emergency would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to market any of the Securities Series A Notes or to enforce contracts for the sale of any of the SecuritiesSeries A Notes, (iii) any suspension or limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, Exchange or in the NYSE Amex Equities, the NASDAQ Stock Market over-the- counter markets or any setting of minimum prices for trading on such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iv) any declaration of a general banking moratorium by federal, either federal or New York or Maryland authorities, (v) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that in your judgment has a material adverse effect on the financial markets in the United States, and would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to proceed with the offering, sale or delivery market any of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus Series A Notes or to enforce contracts for the sale of any of the Securities or Series A Notes, (vi) the enactment, publication, decree, or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which wouldwhich, in the judgment of the Representativesyour judgment, would have a Material Adverse Effect, or (vii) any securities of the Company or any of its subsidiaries shall have been downgraded or placed on any "watch list" for possible downgrading by any nationally recognized statistical rating organization. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and of the Underwriters Purchaser set forth in or made pursuant to this Agreement shall remain operative and in full force and effect, and will survive delivery of and payment for the SecuritiesSeries A Notes, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any either of the Underwriters Purchaser or by or on behalf of the Company, its the officers or directors of the Company or any controlling person thereofof the Company, (ii) acceptance of the Securities Series A Notes and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters Purchasers pursuant to clauses (i) or (iii) (with respect to the Company’s securitiesvii) of the second paragraph of this Section 11 9 or because of the failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses (including the fees and disbursements of counsel) incurred by you. Notwithstanding any termination of this Agreement, the Company shall be liable for all expenses which they have it has agreed to pay pursuant to Section 5(e4(f) hereof. Except as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the Company, the UnderwritersPurchaser, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “"successors and assigns” " shall not include a purchaser of any of the Securities Series A Notes from any of the Underwriters Purchaser merely because of such purchase.
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement shall become effective upon the execution and delivery of this Agreement by the parties heretoAgreement. This Agreement may be terminated at any time on or prior to the Closing Date by you the Representative by written notice to the Company if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is given in the Registration Statement and the Prospectus, any Material Adverse Effect occursmaterial adverse change or development involving a prospective material adverse change (including, whichwithout limitation, the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority) in the condition, financial or otherwise, of the Company and its subsidiaries taken as a whole or the earnings, affairs, or business prospects of the Company and its subsidiaries taken as a whole, whether or not arising in the ordinary course of business, which would, in the judgment of the RepresentativesRepresentative, makes make it impracticable or inadvisable to market the Securities or to enforce contracts for sale of on the Securitiesterms and in the manner contemplated in the Prospectus, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis (including, without limitation, an act of terrorism) or material adverse change in economic conditions or in the financial markets of the United States or elsewhereelsewhere that, or any other substantial national or international calamity or emergency if in the effect judgment of such outbreakthe Representative, escalation, calamity, crisis or emergency is material and adverse and would, in the judgment of the RepresentativesRepresentative, make it impracticable or inadvisable to market the Securities or to enforce contracts for on the sale of terms and in the Securitiesmanner contemplated in the Prospectus, (iii) any the suspension or material limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, American Stock Exchange or the NASDAQ Stock National Market or System, limitation on prices on any setting of minimum prices for trading on such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United StatesNational Market System, (iv) any declaration of a general banking moratorium material disruption in securities settlement that makes it impracticable to deliver the Securities in the manner contemplated by federalthe Prospectus, New York or Maryland authorities, (v) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your judgment the opinion of the Representative has a material adverse effect on the financial markets in the United States, and would, in the judgment of the Representatives, make it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decree, or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made pursuant to this Agreement shall remain operative and in full force and effect, and will survive delivery of and payment for the Securities, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securities) of the second paragraph of this Section 11 or because of the failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any termination of this Agreement, the Company shall be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereof. Except as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Samples: Underwriting Agreement (Capital One Financial Corp)
Effective Date of Agreement and Termination. (a) This Agreement shall become effective upon the execution and delivery of this Agreement by the parties hereto. .
(b) This Agreement may be terminated at any time on or prior to the Closing Date by you the Initial Purchasers by notice to the Company IMED if any of the following has occurred: (i) on subsequent to the date of this Agreement, there has been any material adverse change, or after any development involving a prospective material adverse change, in the Applicable Timeassets, any Material Adverse Effect occursproperties, whichbusiness, results of operations, condition (financial or otherwise) or prospects, whether or not arising in the ordinary course of business, of IMED and its subsidiaries, taken as a whole, or IVAC Holdings and its subsidiaries, taken as a whole that, in the judgment of DLJ, materially impairs the Representatives, makes it impracticable or inadvisable to market the Securities or to enforce contracts for sale investment quality of the Securities, Series A Notes; (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in the financial markets of the United States or elsewhere, or any other substantial national or international calamity or emergency emergency, if the effect of such outbreak, escalation, calamity, crisis or emergency would, in the judgment of the Representativesany Initial Purchaser, make it impracticable or inadvisable to market the Securities Series A Notes or to enforce contracts for the sale of the Securities, Series A Notes; (iii) any suspension or limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, American Stock Exchange or in the NASDAQ Stock Market over-the-counter markets or any setting of minimum prices for trading on such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, ; (iv) any declaration of a general banking moratorium by federal, either federal or New York or Maryland authorities, ; (v) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that that, in your the judgment of any Initial Purchaser, has a material adverse effect on the financial markets in the United States, States and would, in the judgment of the Representativesany Initial Purchaser, make it impracticable or inadvisable to proceed with market the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus Series A Notes or to enforce contracts for the sale of the Securities or Series A Notes; (vi) the enactment, publication, decree, or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which that, in the judgment of any Initial Purchaser materially and adversely affects the business or operations of IMED, IVAC Holdings or any of their respective subsidiaries; or (vii) any securities of the IMED, IVAC Holdings or any of their respective subsidiaries shall have been downgraded or placed on any "watch list" for possible downgrading by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act), provided, however that in the case of such "watch list" placement, termination shall be permitted only if such placement would, in the judgment of DLJ, make it impracticable or inadvisable to market the Representatives, have a Material Adverse Effect. Series A Notes or to enforce contracts for the sale of the Series A Notes or materially impair the investment quality of the Series A Notes.
(c) The indemnities and contribution provisions and the other agreements, representations and warranties of the CompanyCompany and the Guaranteeing Subsidiaries, its their respective officers and directors and of the Underwriters Initial Purchasers set forth in or made pursuant to this Agreement shall remain operative and in full force and effect, and will shall survive delivery of and payment for the SecuritiesSeries A Notes, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters Initial Purchasers or by or on behalf of IMED, IVAC Holdings, the Surviving Company, its their respective officers or directors or any controlling person thereofof IMED, IVAC Holdings or the Surviving Company, (ii) acceptance of the Securities Series A Notes and payment for them hereunder and (iii) termination of this Agreement. .
(d) If this Agreement shall be terminated by the Underwriters Initial Purchasers pursuant to clauses paragraph (ib) or (iii) (with respect to the Company’s securities) of the second paragraph of this Section 11 or because of the failure or refusal on the part of the Company IMED to comply with the terms or to fulfill any of the conditions of this Agreement, the Company IMED agrees to reimburse you the Initial Purchasers for all out-of-pocket expenses (including, without limitation, the fees and disbursements of counsel) incurred by youthe Initial Purchasers. Notwithstanding any termination of this Agreement, the Company IMED shall be liable for all expenses which they have it has agreed to pay pursuant to Section 5(e5(f) hereof. Except as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Samples: Purchase Agreement (Imed International Trading Corp)
Effective Date of Agreement and Termination. This Agreement shall become effective upon the later of (i) execution and delivery of this Agreement and (ii) when notification of the effectiveness of the Registration Statement has been released by the parties heretoCommission. This Agreement may be terminated at any time on or prior to the Closing Date by you by written notice to the Company if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is given in the Registration Statement and the Prospectus, any Material Adverse Effect occursmaterial adverse change or development involving a prospective material adverse change in the condition, whichfinancial or otherwise, of the Company and its subsidiaries or the earnings, affairs, or business prospects of the Company or any of its subsidiaries taken as a whole, whether or not arising in the ordinary course of business, which would, in the judgment of the Representativesyour judgment, makes make it impracticable or inadvisable to market the Securities or to enforce contracts for sale of on the Securitiesterms and in the manner contemplated in the Prospectus, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in economic conditions or in the financial markets of the United States or elsewhereelsewhere that, or any other substantial national or international calamity or emergency if the effect of such outbreakin your judgment, escalation, calamity, crisis or emergency is material and adverse and would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to market the Securities or to enforce contracts for Shares on the sale of terms and in the Securitiesmanner contemplated in the Prospectus, (iii) any the suspension or material limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, American Stock Exchange or the NASDAQ Stock National Market System or any setting of minimum limitation on prices for trading securities on any such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United StatesNational Market System, (iv) the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which in your opinion materially and adversely affects, or will materially and adversely affect, the business or operations of the Company or any Subsidiary, (v) the declaration of a general banking moratorium by federal, either federal or New York State authorities or Maryland authorities, (vvi) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your judgment opinion has a material adverse effect on the financial markets in the United States, and would, in the judgment of the Representatives, make it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities . If on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus Closing Date any one or to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decree, or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made pursuant to this Agreement shall remain operative and in full force and effect, and will survive delivery of and payment for the Securities, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any more of the Underwriters shall fail or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of refuse to purchase the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) which it or (iii) (with respect to the Company’s securities) of the second paragraph of this Section 11 or because of the failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any termination of this Agreement, the Company shall be liable for all expenses which they have agreed to pay pursuant purchase hereunder on such date and the aggregate number of Securities which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to Section 5(e) hereof. Except as otherwise providedpurchase is not more than one-tenth of the total number of Securities to be purchased on such date by all Underwriters, this Agreement has been and is made solely for the benefit of and each non-defaulting Underwriter shall be binding upon obligated severally, in the Company, proportion which the number of Securities set forth opposite its name in Schedule I bears to the total number of Securities which all the non-defaulting Underwriters, any Indemnified Person referred as the case may be, have agreed to herein and their respective successors and assignspurchase, all or in such other proportion as and you may specify, to the extent provided in this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of purchase the Securities from which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase on such date; provided that in no event shall the number of Securities which any of the Underwriters merely because of such purchase.Underwriter has agreed to purchase pursuant to
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement shall become effective upon the execution and delivery of this Agreement by the parties hereto. This The Initial Purchaser may terminate this Agreement may be terminated at any time on or prior to the Closing Date by you by written notice to the Company if any of the following has occurred: :
(ia) on or after Since the Applicable Timerespective dates as of which information is given in the Offering Memorandum, any material adverse change or development involving a prospective material adverse change which would cause a Material Adverse Effect occursEffect, whichon the earnings, affairs, properties, results of operations or business prospects of the Company or any of its subsidiaries, whether or not arising in the ordinary course of business, which would, in the judgment of the RepresentativesInitial Purchaser's judgment, makes make it impracticable or inadvisable to market the Securities Series A Senior Notes on the terms and in the manner contemplated in the Offering Documents or to enforce contracts for sale materially impairs the investment quality of the Securities, Series A Senior Notes;
(iib) any new Any outbreak or material escalation of hostilities or other national or international calamity calamity, crisis or crisis emergency or material adverse change in the economic conditions or financial markets of the United States or elsewheremarkets, or any other substantial national or international calamity or emergency if the effect of such outbreak, escalation, calamity, crisis crisis, emergency or emergency change in economic conditions or financial markets of the United States or elsewhere would, in the judgment of the RepresentativesInitial Purchaser's judgment, be material and adverse and make it impracticable or inadvisable to market the Securities Series A Senior Notes on the terms and in the manner contemplated in the Offering Memorandum or to enforce the contracts for the sale of the Securities, Series A Senior Notes;
(iiic) any The suspension or material limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, American Stock Exchange or the NASDAQ Stock National Market System or any setting of minimum limitation on prices for trading securities on any such exchange or marketsnational market system;
(d) The enactment, publication, decree or a material disruption has occurred in commercial banking other promulgation of any federal or securities settlement state law, statute, regulation, rule or clearance services order of any court or other governmental authority which in the United States, Initial Purchaser's opinion causes or could cause a Material Adverse Effect;
(ive) any The declaration of a general banking moratorium by federal, either federal or New York or Maryland State authorities, ;
(vf) the The taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your judgment the Initial Purchaser's opinion has a material adverse effect on the financial markets in the United States, States and would, would in the Initial Purchaser's judgment of the Representatives, make it impracticable or inadvisable to proceed with market the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus Series A Senior Notes or to enforce contracts for the sale sales of the Securities or Series A Senior Notes; or
(vig) the enactment, publication, decree, or other promulgation Any of any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment securities of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties Company or any of the Company, its officers and directors and the Underwriters set forth in 's subsidiaries shall have been downgraded or made pursuant to this Agreement shall remain operative and in full force and effect, and will survive delivery placed on any "watch list" for possible downgrading by any nationally recognized statistical rating organization (as defined for purposes of and payment for the Securities, regardless of (iRule 436(9) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of under the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securities) of the second paragraph of this Section 11 or because of the failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any termination of this Agreement, the Company shall be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereof. Except as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchaseAct).
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement shall become effective upon the later of (i) execution and delivery of this Agreement and (ii) receipt of notification of the effectiveness of the Registration Statement by WFSRC or the parties heretoRepresentative. This Agreement may be terminated at any time on or prior to the Closing Date by you the Representative by written notice to the Company WFSRC if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is given in the Registration Statement and the Prospectus, any Material Adverse Effect occursadverse change or development involving a prospective adverse change in or affecting particularly the condition, whichfinancial or otherwise, of WFSRC or WFS or the earnings, affairs or business prospects of WFSRC or WFS, whether or not arising in the ordinary course of business, which would, in the reasonable judgment of the RepresentativesRepresentative, makes it impracticable make the offering or inadvisable to market the Securities or to enforce contracts for sale delivery of the Securitiesany class of Notes impracticable, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in economic conditions, if the effect of such outbreak, calamity, crisis or change on the financial markets of the United States or elsewhere, or any other substantial national or international calamity or emergency if the effect of such outbreak, escalation, calamity, crisis or emergency elsewhere would, in the reasonable judgment of the RepresentativesRepresentative, make it impracticable the offering or inadvisable to market the Securities or to enforce contracts for the sale delivery of the Securitiesany class of Notes impracticable, (iii) any suspension or limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange or the American Stock Exchange or limitation on prices (other than limitations on hours or numbers of days of trading) for securities on either such Exchange, the NYSE Amex Equities, the NASDAQ Stock Market or any setting of minimum prices for trading on such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iv) the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which in the reasonable opinion of the Representative materially and adversely affects, or will materially and adversely affect, the business or operations of WFSRC or WFS, (v) declaration of a general banking moratorium by federal, either federal or New York State authorities or Maryland authorities, (vvi) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your judgment the reasonable opinion the Representative has a material adverse effect on the financial markets in the United States, and would, in the judgment of the Representatives, make it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decree, or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made pursuant to this Agreement shall remain operative and in full force and effect, and will survive delivery of and payment for the Securities, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securities) of the second paragraph of this Section 11 or because of the failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any termination of this Agreement, the Company shall be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereof. Except as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement shall become effective upon the execution and delivery of this Agreement by the parties hereto. This Agreement may be terminated at any time on or prior to the Closing Date by you by written notice to the Company if any of the following has occurred: :
(i) on or after since the Applicable Timerespective dates as of which information is given in the Registration Statement and the Prospectus, any Material Adverse Effect occursmaterial adverse change or development involving a prospective material adverse change in the condition, whichfinancial or otherwise, of the Company or the earnings, affairs, or business prospects of the Company, whether or not arising in the ordinary course of business, which would, in the judgment of the Representativesyour judgment, makes make it impracticable or inadvisable to market the Securities or to enforce contracts for sale of on the Securities, terms and in the manner contemplated in the Prospectus,
(ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in economic conditions or in the financial markets of the United States or elsewhereelsewhere that, or any other substantial national or international calamity or emergency if the effect of such outbreakin your judgment, escalation, calamity, crisis or emergency is material and adverse and would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to market proceed with the offering, sale or delivery of the Securities or to enforce contracts for on the sale of terms and in the Securities, manner contemplated in the Prospectus,
(iii) any the suspension or material limitation of trading in the Company’s securities or in trading generally in securities other instruments on the New York NYSE, the American Stock Exchange, the NYSE Amex EquitiesThe Chicago Board of Options Exchange, the NASDAQ Stock Chicago Mercantile Exchange, the Chicago Board of Trade or the Nasdaq National Market or any setting of minimum limitation on prices for trading securities on any such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, Nasdaq National Market,
(iv) the suspension of trading of any securities of the Company on any exchange or in the over-the-counter market,
(v) the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which in your opinion materially and adversely affects, or will materially and adversely affect, the business or operations of the Company,
(vi) the declaration of a general banking moratorium by either federal, Massachusetts, North Carolina or New York or Maryland authorities, State authorities or
(vvii) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your judgment opinion has a material adverse effect on the financial markets in the United States, and would, in the judgment of the Representatives, make it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decree, or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made pursuant to this Agreement shall remain operative and in full force and effect, and will survive delivery of and payment for the Securities, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securities) of the second paragraph of this Section 11 or because of the failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any termination of this Agreement, the Company shall be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereof. Except as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement shall ------------------------------------------- become effective upon the later of (i) execution and delivery of this Agreement and (ii) when notification of the effectiveness of the Registration Statement has been released by the parties heretoCommission. This Agreement may be terminated at any time on or prior to the Closing Date by you by written notice to the Company if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is given in the Registration Statement and the Prospectus, any Material Adverse Effect occursmaterial adverse change or development involving a prospective material adverse change in the condition, whichfinancial or otherwise, of the Company, or the earnings, affairs, or business prospects of the Company, whether or not arising in the ordinary course of business, which would, in the judgment of the Representativesyour judgment, makes make it impracticable or inadvisable to market the Securities or to enforce contracts for sale of Shares on the Securitiesterms and in the manner contemplated in the Prospectus, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in economic conditions of such magnitude in its effect on the financial markets of the United States or elsewhereelsewhere that, or any other substantial national or international calamity or emergency if the effect of such outbreakin your judgment, escalation, calamity, crisis or emergency is material and adverse and would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to market the Securities or to enforce contracts for Shares on the sale of terms and in the Securitiesmanner contemplated in the Prospectus, (iii) any the suspension or material limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, American Stock Exchange or the NASDAQ Stock Nasdaq National Market for a period greater than one hour or any setting of minimum limitation on prices for trading securities on any such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United StatesNational Market System, (iv) the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which in your opinion materially and adversely affects, or will materially and adversely affect, the business or operations of the Company to such an extent that is impracticable to market the Shares as contemplated hereby, (v) the declaration of a general banking moratorium by federal, either federal or New York State authorities or Maryland authorities, (vvi) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your judgment opinion has a material adverse effect on the financial markets in the United States. If on the Closing Date or on an Option Closing Date, as the case may be, any one or more of the Underwriters shall fail or refuse to purchase the Firm Shares or Additional Shares, as the case may be, which it or they have agreed to purchase hereunder on such date and wouldthe aggregate number of Firm Shares or Additional Shares, as the case may be, which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase is not more than one-tenth of the total number of Shares to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, in the judgment proportion which the number of Firm Shares set forth opposite its name in Schedule I bears to the Representativestotal number of Firm Shares which all the non-defaulting Underwriters, make it impracticable or inadvisable as the case may be, have agreed to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decreepurchase, or in such other promulgation proportion as you may specify, to purchase the Firm Shares or Additional Shares, as the case may be, which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase on such date; provided that in no event shall the number of Firm Shares -------- or Additional Shares, as the case may be, which any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made Underwriter has agreed to purchase pursuant to Section 2 hereof be increased pursuant to this Agreement Section 9 by an amount in excess of one-ninth of such number of Firm Shares or Additional Shares, as the case may be, without the written consent of such Underwriter. If on the Closing Date or on an Option Closing Date, as the case may be, any Underwriter or Underwriters shall remain operative and in full force and effectfail or refuse to purchase Firm Shares, or Additional Shares, as the case may be, and will survive delivery the aggregate number of and payment for Firm Shares or Additional Shares, as the Securitiescase may be, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securities) which such default occurs is more than one-tenth of the second paragraph aggregate number of Shares to be purchased on such date by all Underwriters and arrangements satisfactory to you and the Company for purchase of such Shares are not made within 48 hours after such default, this Section 11 or because of the failure or refusal Agreement will terminate without liability on the part of any non- defaulting Underwriter and the Company to comply with the terms or to fulfill Company. In any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any such case which does not result in termination of this Agreement, either you or the Company shall have the right to postpone the Closing Date or the applicable Option Closing Date, as the case may be, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement and the Prospectus or any other documents or arrangements may be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereofeffected. Except as otherwise provided, Any action taken under this Agreement has been and is made solely for the benefit paragraph shall not relieve any defaulting Underwriter from liability in respect of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in default of any such Underwriter under this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Samples: Underwriting Agreement (Emcore Corp)
Effective Date of Agreement and Termination. This Agreement ------------------------------------------- shall become effective upon the later of (i) execution and delivery of this Agreement and (ii) when notification of the effectiveness of the Registration Statement has been released by the parties heretoCommission. This Agreement may be terminated at any time on or prior to the Closing Date by you by written notice to the Company Sellers if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is given in the Registration Statement and the Prospectus, any Material Adverse Effect occursadverse change or development involving a prospective adverse change in the condition, whichfinancial or otherwise, of the Company or any of its subsidiaries or the earnings, affairs, or business prospects of the Company or any of its subsidiaries, whether or not arising in the ordinary course of business, which would, in the judgment of the Representativesyour judgment, makes make it impracticable or inadvisable to market the Securities or to enforce contracts for sale of Shares on the Securitiesterms and in the manner contemplated in the Prospectus, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in economic conditions or in the financial markets of the United States or elsewhereelsewhere that, or any other substantial national or international calamity or emergency if the effect of such outbreakin your judgment, escalation, calamity, crisis or emergency is material and adverse and would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to market the Securities or to enforce contracts for Shares on the sale of terms and in the Securitiesmanner contemplated in the Prospectus, (iii) any the suspension or material limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, American Stock Exchange or the NASDAQ Stock National Market System or any setting of minimum limitation on prices for trading securities on any such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United StatesNational Market System, (iv) the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which in your opinion materially and adversely affects, or will materially and adversely affect, the business or operations of the Company or any Subsidiary, (v) the declaration of a general banking moratorium by federal, either federal or New York State authorities or Maryland authorities, (vvi) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your judgment opinion has a material adverse effect on the financial markets in the United States. If on the Closing Date or on an Option Closing Date, as the case may be, any one or more of the Underwriters shall fail or refuse to purchase the Firm Shares or Additional Shares, as the case may be, which it or they have agreed to purchase hereunder on such date and wouldthe aggregate number of Firm Shares or Additional Shares, as the case may be, which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase is not more than one-tenth of the total number of Shares to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, in the judgment proportion which the number of Firm Shares set forth opposite its name in Schedule I bears to the Representativestotal number of Firm Shares which all the non-defaulting Underwriters, make it impracticable or inadvisable as the case may be, have agreed to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decreepurchase, or in such other promulgation proportion as you may specify, to purchase the Firm Shares or Additional Shares, as the case may be, which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase on such date; provided that in no event shall the number -------- of Firm Shares or Additional Shares, as the case may be, which any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made Underwriter has agreed to purchase pursuant to Section 2 hereof be increased pursuant to this Agreement Section 10 by an amount in excess of one-ninth of such number of Firm Shares or Additional Shares, as the case may be, without the written consent of such Underwriter. If on the Closing Date or on an Option Closing Date, as the case may be, any Underwriter or Underwriters shall remain operative and in full force and effectfail or refuse to purchase Firm Shares, or Additional Shares, as the case may be, and will survive delivery the aggregate number of and payment for Firm Shares or Additional Shares, as the Securitiescase may be, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securities) which such default occurs is more than one-tenth of the second paragraph aggregate number of Shares to be purchased on such date by all Underwriters and arrangements satisfactory to you and the applicable Sellers for purchase of such Shares are not made within 48 hours after such default, this Section 11 or because of the failure or refusal Agreement will terminate without liability on the part of any non-defaulting Underwriter and the Company to comply with the terms or to fulfill applicable Sellers. In any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any such case which does not result in termination of this Agreement, either you or the Company Sellers shall have the right to postpone the Closing Date or the applicable Option Closing Date, as the case may be, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement and the Prospectus or any other documents or arrangements may be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereofeffected. Except as otherwise provided, Any action taken under this Agreement has been and is made solely for the benefit paragraph shall not relieve any defaulting Underwriter from liability in respect of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in default of any such Underwriter under this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Samples: Underwriting Agreement (Mbia Inc)
Effective Date of Agreement and Termination. a. This Agreement shall become effective upon the execution and delivery of this Agreement by the parties hereto. its execution.
b. This Agreement may be terminated at any time on or prior to the Closing Date by you by the Initial Purchasers upon notice to the Company and MHI if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is provided in the Definitive Memorandum, any Material Adverse Effect occursmaterial adverse change, whichor any development involving a prospective material adverse change, in the judgment financial condition, business, properties, prospects, oil and gas reserves, net worth or results of operations of the RepresentativesCompany and MHI, makes taken as a whole, which would, in the Initial Purchasers' reasonable judgment, make it impracticable or inadvisable to market the Securities or to enforce contracts for sale of Notes on the Securitiesterms and in the manner contemplated in the Offering Memorandum, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in the financial markets of the United States or elsewhereeconomic conditions, or any other substantial national or international calamity or emergency if the effect of such outbreak, escalation, calamity, crisis or emergency change on the financial markets of the United States would, in the judgment of the RepresentativesInitial Purchasers' reasonable judgment, make it impracticable or inadvisable to market the Securities or to enforce contracts for Notes on the sale of terms and in the Securitiesmanner specified in the Offering Memorandum, (iii) any suspension or limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex EquitiesInc., the NASDAQ American Stock Exchange or The Nasdaq Stock Market or the imposition of any setting limitation on prices (other than limitations on hours or number of minimum prices days of trading) for trading securities on any such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United StatesThe Nasdaq Stock Market, (iv) the reenactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which in the Initial Purchasers' reasonable judgment materially and adversely affects, or will materially and adversely affect, the business or operations of the Company and MHI, taken as a whole, (v) the declaration of a general banking moratorium by federal, either federal or New York or Maryland State authorities, (vvi) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that in your the Initial Purchasers' reasonable judgment has could have a material adverse effect on the financial markets in the United States, and wouldor (viii) there shall have been such a material adverse change in general economic, political or financial conditions or if the effect of international conditions on the financial markets in the United States shall be such as, in the judgment of Initial Purchasers' judgment, makes it inadvisable or impracticable to market the Representatives, make it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities Notes on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decree, or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made pursuant to this Agreement shall remain operative and in full force and effect, and will survive delivery of and payment for the Securities, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securities) of the second paragraph of this Section 11 or because of the failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any termination of this Agreement, the Company shall be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereof. Except as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchaseOffering Memorandum.
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement shall ------------------------------------------- become effective upon the later of (i) execution and delivery of this Agreement and (ii) when notification of the effectiveness of the Registration Statement has been released by the parties heretoCommission. This Agreement may be terminated at any time on or prior to the Closing Date by you by written notice to the Company Sellers if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is given in the Registration Statement and the Prospectus, any Material Adverse Effect occursmaterial adverse change or development involving a prospective material adverse change in the condition, whichfinancial or otherwise, of the Company and subsidiaries, taken as a whole, or the earnings, affairs, or business prospects of the Company and its subsidiaries, taken as a whole, whether or not arising in the ordinary course of business, which would, in the judgment of the Representativesyour judgment, makes make it impracticable or inadvisable to market the Securities or to enforce contracts for sale of Shares on the Securitiesterms and in the manner contemplated in the Prospectus, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in economic conditions or in the financial markets of the United States or elsewhereelsewhere that, or any other substantial national or international calamity or emergency if the effect of such outbreakin your judgment, escalation, calamity, crisis or emergency is material and adverse and would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to market the Securities or to enforce contracts for Shares on the sale of terms and in the Securitiesmanner contemplated in the Prospectus, (iii) any the suspension or material limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, American Stock Exchange or the NASDAQ Stock Nasdaq National Market System or any setting of minimum limitation on prices for trading securities on any such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United StatesNational Market System, (iv) the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which in your opinion materially and adversely affects, or will materially and adversely affect, the business or operations of the Company or any Subsidiary, (v) the declaration of a general banking moratorium by federal, either federal or New York State authorities or Maryland authorities, (vvi) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your judgment opinion has a material adverse effect on the financial markets in the United States. If on the Closing Date or on an Option Closing Date, as the case may be, any one or more of the Underwriters shall fail or refuse to purchase the Firm Shares or Additional Shares, as the case may be, which it or they have agreed to purchase hereunder on such date and wouldthe aggregate number of Firm Shares or Additional Shares, as the case may be, which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase is not more than one-tenth of the total number of Shares to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, in the judgment proportion which the number of Firm Shares set forth opposite its name in Schedule I bears to the Representativestotal number of Firm Shares which all the non-defaulting Underwriters, make it impracticable or inadvisable as the case may be, have agreed to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decreepurchase, or in such other promulgation proportion as you may specify, to purchase the Firm Shares or Additional Shares, as the case may be, which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase on such date; provided that in no event shall the number of Firm Shares or -------- Additional Shares, as the case may be, which any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made Underwriter has agreed to purchase pursuant to Section 2 hereof be increased pursuant to this Agreement Section 10 by an amount in excess of one-ninth of such number of Firm Shares or Additional Shares, as the case may be, without the written consent of such Underwriter. If on the Closing Date or on an Option Closing Date, as the case may be, any Underwriter or Underwriters shall remain operative and in full force and effectfail or refuse to purchase Firm Shares, or Additional Shares, as the case may be, and will survive delivery the aggregate number of and payment for Firm Shares or Additional Shares, as the Securitiescase may be, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securities) which such default occurs is more than one-tenth of the second paragraph aggregate number of Shares to be purchased on such date by all Underwriters and arrangements satisfactory to you and the applicable Sellers for purchase of such Shares are not made within 48 hours after such default, this Section 11 or because of the failure or refusal Agreement will terminate without liability on the part of any non-defaulting Underwriter and the Company to comply with the terms or to fulfill applicable Sellers. In any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any such case which does not result in termination of this Agreement, either you or the Company Sellers shall have the right to postpone the Closing Date or the applicable Option Closing Date, as the case may be, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement and the Prospectus or any other documents or arrangements may be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereofeffected. Except as otherwise provided, Any action taken under this Agreement has been and is made solely for the benefit paragraph shall not relieve any defaulting Underwriter from liability in respect of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in default of any such Underwriter under this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement shall become effective upon the execution and delivery of this Agreement by the parties heretohereof. This Agreement may be terminated at any time on or prior to the Closing Date by you by notice to the Company if any of the following has occurred: (i) on if there has been, since the time of execution of this Agreement or after since the Applicable Timerespective dates as of which information is given in the Offering Memorandum, any Material Adverse Effect occurs, which, material adverse change in the judgment condition, financial or otherwise, or in the earnings, business affairs or business prospects of (1) the RepresentativesCompany and its subsidiaries considered as one enterprise, makes it impracticable whether or inadvisable to market not arising in the Securities ordinary course of business or to enforce contracts for sale (2) Xxxxxx and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of the Securities, business or (ii) if there has occurred any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in the financial markets of in the United States or elsewherethe international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or any other substantial change or development involving a prospective change in national or international calamity political, financial or emergency if economic conditions, in each case the effect of which is such outbreak, escalation, calamity, crisis or emergency wouldas to make it, in the judgment of the RepresentativesPurchasers, make it impracticable or inadvisable to market the Securities Notes or to enforce contracts for the sale of the SecuritiesNotes, or (iii) any suspension or limitation of if trading in any securities of the Company’s securities Company has been suspended or in materially limited by the Commission or the Nasdaq National Market, or if trading generally in securities on the American Stock Exchange, the New York Stock Exchange, the NYSE Amex EquitiesLondon Stock Exchange or the Nasdaq National Market has been suspended or materially limited, the NASDAQ Stock Market or any setting of minimum or maximum prices for trading on such exchange or marketshave been fixed, or a material disruption has occurred in commercial banking maximum ranges for prices have been required, by any of said exchanges or securities settlement by the Nasdaq National Market or clearance services in by order of the United StatesCommission, the National Association of Securities Dealers, Inc. or any other governmental authority, or (iv) any declaration of if a general banking moratorium has been declared by federal, either Federal or New York or Maryland authorities, or (v) if the taking of any action rating assigned by any federal, state nationally recognized statistical rating organization to the Notes or local government or agency in respect of its monetary or fiscal affairs that in your judgment has a material adverse effect on the financial markets in the United States, and would, in the judgment any other debt securities of the Representatives, make Company shall have been lowered or if any such rating agency shall have publicly announced that it impracticable has placed the Notes or inadvisable to proceed with the offering, sale or delivery any other debt securities of the Securities Company on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts what is commonly termed a "watch list" for the sale of the Securities or (vi) the enactment, publication, decree, or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effectpossible downgrading. The indemnities and contribution provisions and the other agreements, representations and warranties of the CompanyCompany and the Guarantors, its their respective officers and directors and of the Underwriters Purchasers set forth in or made pursuant to this Agreement shall remain operative and in full force and effect, and will survive delivery of and payment for the SecuritiesNotes, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters Purchasers or by or on behalf of the CompanyCompany or any of the Guarantors, its the officers or directors of the Company or any of the Guarantors or controlling person thereofof the Company or any of the Guarantors, (ii) acceptance of the Securities Notes and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters Purchasers pursuant to clauses (i) or (iii) (with respect to the Company’s securitiesv) of the second paragraph of this Section 11 9 or because of the failure or refusal on the part of the Company or any Guarantor to comply with the terms or to fulfill any of the conditions of this Agreement, the Company agrees and the Guarantors agree, jointly and severally, to reimburse you for all out-of-pocket expenses (including the fees and disbursements of counsel) incurred by you. Notwithstanding any termination of this Agreement, the Company and the Guarantors shall be liable liable, jointly and severally, for all expenses which they have agreed to pay pursuant to Section 5(e4(f) hereof. Except as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the Company, the UnderwritersGuarantors, the Purchasers, any Indemnified Person referred to herein and their respective successors and assignsassigns and, in the case of natural persons, their heirs and legal representatives, all as and to the extent provided in this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “"successors and assigns” " shall not include a purchaser of any of the Securities Notes from any of the Underwriters Purchasers merely because of such purchase.
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement ------------------------------------------- shall become effective upon the execution and delivery of this Agreement by the parties heretohereof. This Agreement may be terminated at any time on or prior to the Closing Date by you by notice to the Company if any of the following has occurredoccurred on or after the date hereof: (i) on or after subsequent to the Applicable Timedate information is provided in the Offering Memorandum, any Material Adverse Effect occurs, Change which, in your judgment materially impairs the judgment investment quality of the Representatives, makes it impracticable or inadvisable to market the Securities or to enforce contracts for sale of the SecuritiesNotes, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in the financial markets of the United States or elsewhere, or any other substantial national or international calamity or emergency if the effect of such outbreak, escalation, calamity, crisis or emergency would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to market the Securities Notes or to enforce contracts for the sale of the SecuritiesNotes, (iii) any suspension or limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, Exchange or in the NYSE Amex Equities, the NASDAQ Stock Market over-the-counter markets or any setting of minimum prices for trading on such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iv) any declaration of a general banking moratorium by federal, either federal or New York or Maryland authorities, (v) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that in your judgment has a material adverse effect on the financial markets in the United States, and would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to proceed with market the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus Notes or to enforce contracts for the sale of the Securities Notes, or (vi) the enactment, publication, decree, or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which wouldwhich, in the judgment of the Representativesyour judgment, would have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the CompanyCompany and the Subsidiary Guarantors, its their respective officers and directors and of the Underwriters Initial Purchaser set forth in or made pursuant to this Agreement shall remain operative and in full force and effect, and will survive delivery of and payment for the SecuritiesNotes, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters Initial Purchaser or by or on behalf of the Company, its the Subsidiary Guarantors, the officers or directors of the Company or the Subsidiary Guarantors, or any controlling person thereofof the Company or the Subsidiary Guarantors, (ii) acceptance of the Securities Notes and payment for them therefor hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters Initial Purchaser pursuant to clauses clause (i) or (iii) (with respect to the Company’s securities) of the second paragraph of this Section 11 10 or because of the failure or refusal on the part of the Company or any of the Subsidiary Guarantors to comply with the terms or to fulfill any of the conditions of this Agreement, the Company agrees and the Subsidiary Guarantors agree to reimburse you for all out-of-pocket expenses (including the fees and disbursements of counsel) incurred by you. Notwithstanding any termination of this Agreement, the Company and each of the Subsidiary Guarantors shall be liable for all expenses which they have it has agreed to pay pursuant to Section 5(e) 5 hereof. Except as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the Company, the UnderwritersSubsidiary Guarantors, the Initial Purchaser, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “"successors and assigns” " shall not include a purchaser of any of the Securities Notes from any of the Underwriters Initial Purchaser merely because of such purchase.
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement Thix Xxxxxment shall become effective upon the later of (i) execution and delivery of this Agreement and (ii) receipt of notification of the effectiveness of the Registration Statement or any post-effective amendments thereto by WFSRC or the parties heretoRepresentative. This Agreement may be terminated at any time on or prior to the Closing Date by you the Representative by written notice to the Company WFSRC if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is given in the Registration Statement and the Prospectus, any Material Adverse Effect occursadverse change or development involving a prospective adverse change in or affecting particularly the condition, whichfinancial or otherwise, of WFSRC or WFS or the earnings, affairs or business prospects of WFSRC or WFS, whether or not arising in the ordinary course of business, which would, in the reasonable judgment of the RepresentativesRepresentative, makes it impracticable make the offering or inadvisable to market the Securities or to enforce contracts for sale delivery of the Securitiesany class of Notes impracticable, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or act of terrorism or material adverse change in economic conditions, if the effect of such outbreak, calamity, crisis, act of terrorism or change on the financial markets of the United States or elsewhere, or any other substantial national or international calamity or emergency if the effect of such outbreak, escalation, calamity, crisis or emergency elsewhere would, in the reasonable judgment of the RepresentativesRepresentative, make it impracticable the offering or inadvisable to market the Securities or to enforce contracts for the sale delivery of the Securitiesany class of Notes impracticable, (iii) any suspension or limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange or the American Stock Exchange or limitation on prices (other than limitations on hours or numbers of days of trading) for securities on either such Exchange, the NYSE Amex Equities, the NASDAQ Stock Market or any setting of minimum prices for trading on such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iv) the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which in the reasonable opinion of the Representative materially and adversely affects, or will materially and adversely affect, the business or operations of WFSRC or WFS, (v) declaration of a general banking moratorium by federal, either federal or New York State authorities or Maryland authorities, (vvi) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your judgment the reasonable opinion the Representative has a material adverse effect on the financial markets in the United States, and would, in the judgment of the Representatives, make it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decree, or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made pursuant to this Agreement shall remain operative and in full force and effect, and will survive delivery of and payment for the Securities, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securities) of the second paragraph of this Section 11 or because of the failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any termination of this Agreement, the Company shall be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereof. Except as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement ------------------------------------------- shall become effective upon the later of (i) execution and delivery of this Agreement and (ii) when notification of the effectiveness of the Registration Statement has been released by the parties heretoCommission. This Agreement may be terminated at any time on or prior to the Closing Date by you by written notice to the Company if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is given in the Registration Statement and the Prospectus, any Material Adverse Effect occursmaterial adverse change or development involving a prospective material adverse change in the condition, whichfinancial or otherwise, or the earnings, affairs, or business prospects of the Company and its subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of business, which would, in the judgment of the Representativesyour judgment, makes make it impracticable or inadvisable impracti- cable to market the Securities or to enforce contracts for sale of on the Securitiesterms and in the manner contemplated in the Prospectus, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in the financial markets of the United States or elsewhereeconomic conditions, or any other substantial national or international calamity or emergency if the effect of such outbreak, escalation, calamity, crisis or emergency change on the financial markets of the United States or elsewhere would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to market the Securities or to enforce contracts for on the sale of terms and in the Securitiesmanner contemplated in the Prospectus, (iii) any the suspension or material limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, American Stock Exchange or the NASDAQ Stock National Market System or any setting of minimum limitation on prices for trading securities on any such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United StatesNational Market System, (iv) trading of any securities of the Company shall have been suspended on any exchange, (v) the declaration of a general banking moratorium by either federal, California or New York State authorities or Maryland authorities, (vvi) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your judgment has a material adverse effect on the financial markets in the United States, States and would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to proceed with the offering, sale or delivery of market the Securities on the terms and in the manner contemplated by this Agreementthe Prospectus. If on the Closing Date or on an Option Closing Date, as the Pricing Disclosure Package case may be, any one or more of the Underwriters shall fail or refuse to purchase the Securities which it or they have agreed to purchase hereunder on such date and the Prospectus aggregate Firm Securities or Additional Securities, as the case may be, which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to enforce contracts for the sale purchase is not more than one-tenth of the total number of Securities or (vi) the enactmentto be purchased by all Underwriters on such date, publication, decree, or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which wouldeach non- defaulting Underwriter shall be obligated severally, in the judgment proportion which the number of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters Securities set forth opposite its name in Schedule I bears to the aggregate number of Firm Securities which all the non-defaulting Underwriters have agreed to purchase, or made in such other proportion as you may specify, to purchase the Securities which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase on such date; provided -------- that in no event shall the number of Firm Securities or Additional Securities, as the case may be, which any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased pursuant to this Agreement shall remain operative and Section 9 by an amount in full force and effect, and will survive delivery excess of and payment for the one-ninth of such number of Firm Securities or Additional Securities, regardless as the case may be, without the written consent of (i) any investigation, or statement as to such Underwriter. If on the results thereof, made by Closing Date or on behalf of an Option Closing Date, as the case may be, any of the Underwriter or Underwriters shall fail or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the refuse to purchase Securities and payment for them hereunder and (iii) termination the aggregate number of this Agreement. If this Agreement shall be terminated by Firm Securities or Additional Securities, as the Underwriters pursuant to clauses (i) or (iii) (case may be, with respect to the Company’s securities) which such default occurs is more than one-tenth of the second paragraph aggregate number of Securities to be purchased on such date by all Underwriters and arrangements satisfactory to you and the Company for purchase of such Securities are not made within 48 hours after such default, this Section 11 or because of the failure or refusal Agreement will terminate without liability on the part of any non-defaulting Underwriter and the Company to comply with the terms or to fulfill Company. In any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any such case which does not result in termination of this Agreement, either you or the Company shall have the right to postpone the Closing Date or on the Option Closing Date, as the case may be, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement and the Prospectus or any other documents or arrangements may be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereofeffected. Except as otherwise provided, Any action taken under this Agreement has been and is made solely for the benefit paragraph shall not relieve any defaulting Underwriter from liability in respect of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in default of any such Underwriter under this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement shall become effective upon the later of (i) execution and delivery of this Agreement and (ii) when notification of the effectiveness of the Registration Statement has been released by the parties heretoCommission. This Agreement may be terminated at any time on or prior to the Closing Date by you by written notice to the Company if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is given in the Registration Statement and the Prospectus, any Material Adverse Effect occursmaterial adverse change or development involving a prospective material adverse change in the condition, whichfinancial or otherwise, of the Company and its subsidiaries or the earnings, affairs, or business prospects of the Company or any of its subsidiaries taken as a whole, whether or not arising in the ordinary course of business, which would, in the judgment of the Representativesyour judgment, makes make it impracticable or inadvisable to market the Securities or to enforce contracts for sale of on the Securitiesterms and in the manner contemplated in the Prospectus, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in economic conditions or in the financial markets of the United States or elsewhereelsewhere that, or any other substantial national or international calamity or emergency if the effect of such outbreakin your judgment, escalation, calamity, crisis or emergency is material and adverse and would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to market the Securities or to enforce contracts for Shares on the sale of terms and in the Securitiesmanner contemplated in the Prospectus, (iii) any the suspension or material limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, American Stock Exchange or the NASDAQ Stock National Market System or any setting of minimum limitation on prices for trading securities on any such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United StatesNational Market System, (iv) the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which in your opinion materially and adversely affects, or will materially and adversely affect, the business or operations of the Company or any Subsidiary, (v) the declaration of a general banking moratorium by federal, either federal or New York State authorities or Maryland authorities, (vvi) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your judgment opinion has a material adverse effect on the financial markets in the United States. If on the Closing Date any one or more of the Underwriters shall fail or refuse to purchase the Units which it or they have agreed to purchase hereunder on such date and the aggregate number of Units which such defaulting Underwriter or Underwriters, and wouldas the case may be, agreed but failed or refused to purchase is not more than one-tenth of the total number of Units to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, in the judgment proportion which the number of Units set forth opposite its name in Schedule I bears to the Representativestotal number of Units which all the non-defaulting Underwriters, make it impracticable or inadvisable as the case may be, have agreed to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decreepurchase, or in such other promulgation proportion as you may specify, to purchase the Units which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase on such date; provided that in no event shall the number of Units which any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made Underwriter has agreed to purchase pursuant to Section 2 hereof be increased pursuant to this Agreement shall remain operative and Section 9 by an amount in full force and effect, and will survive delivery excess of and payment for one-ninth of such number of Units without the Securities, regardless written consent of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreementsuch Underwriter. If this Agreement on the Closing Date any Underwriter or Underwriters shall be terminated by fail or refuse to purchase Units and the Underwriters pursuant to clauses (i) or (iii) (aggregate number of Units with respect to the Company’s securities) which such default occurs is more than one-tenth of the second paragraph aggregate number of Units to be purchased on such date by all Underwriters and arrangements satisfactory to you and the Company for purchase of such Units are not made within 48 hours after such default, this Section 11 or because of the failure or refusal Agreement will terminate without liability on the part of any non-defaulting Underwriter and the Company to comply with the terms or to fulfill Company. In any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any such case which does not result in termination of this Agreement, either you or the Company shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement and the Prospectus or any other documents or arrangements may be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereofeffected. Except as otherwise provided, Any action taken under this Agreement has been and is made solely for the benefit paragraph shall not relieve any defaulting Underwriter from liability in respect of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in default of any such Underwriter under this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement shall become effective upon the later of (i) the execution and delivery of this Agreement by the parties hereto, (ii) the effectiveness of the Registration Statement, and (iii) if a post-effective amendment is required to be filed pursuant to Rule 430A under the Act, the effectiveness of such post-effective amendment. This Agreement may be terminated at any time on or prior to the Closing Date by you by notice to the Company if any of the following has occurred: (i) on subsequent to the date the Registration Statement is declared effective or after the Applicable Timedate of this Agreement, any Material Adverse Effect occurs, Change occurs which, in the judgment of the Representativesany Underwriter, makes make it impracticable or inadvisable to market the Securities or to enforce contracts for the sale of the Securities, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in the financial markets of the United States or elsewhere, or any other substantial national or international calamity or emergency if the effect of such outbreak, escalation, calamity, crisis or emergency would, in the judgment of the Representativesany Underwriter, make it impracticable or inadvisable to market the Securities or to enforce contracts for the sale of the Securities, (iii) any suspension or limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex EquitiesAmerican Stock Exchange, the NASDAQ Nasdaq Stock Market or in the over-the-counter markets or any setting of minimum prices for trading on such exchange exchanges or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iv) any declaration of a general banking moratorium by federalFederal, New York or Maryland Ohio authorities, (v) the taking of any action by any federalFederal, state or local government or agency in respect of its monetary or fiscal affairs that in your judgment has a material adverse effect on the financial markets in the United States, and would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to proceed with the offering, sale or delivery of market the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or Securities, (vi) the enactment, publication, decree, or other promulgation of any federal Federal or state statute, regulation, rule or order of any court or other governmental authority which which, in your judgment, materially and adversely affects or will materially and adversely affect the business or operations of the Company or any Subsidiary, or (vii) any securities of the Company or any of the Subsidiaries shall have been downgraded or placed on any "watch list" for possible downgrading by any nationally recognized statistical rating organization, PROVIDED, that in the case of such "watch list" placement, termination shall be permitted only if such placement would, in the judgment of any Underwriter, make it impracticable or inadvisable to market the Representatives, have a Material Adverse EffectSecurities or to enforce contracts for the sale of the Securities or materially impair the investment quality of the Securities. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and of the Underwriters set forth in or made pursuant to this Agreement shall remain operative and in full force and effect, and will survive delivery of and payment for the Securities, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its the officers or directors of the Company or any controlling person thereofof the Company, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securitiesvii) of the second paragraph of this Section 11 10 or because of the failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses (including the fees and disbursements of counsel) incurred by you. Notwithstanding any termination of this Agreement, the Company shall be liable for all expenses which they have it has agreed to pay pursuant to Section 5(e4(k) hereof. Except as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Samples: Underwriting Agreement (Noble Broadcast Group Inc /Oh/)
Effective Date of Agreement and Termination. This Agreement shall become effective upon the later of (i) execution and delivery of this Agreement and (ii) receipt of notification of the effectiveness of the Registration Statement or any post-effective amendments thereto by WFSRC2 to the parties heretoRepresentative. This Agreement may be terminated at any time on or prior to the Closing Date by you the Representative by written notice to the Company WFSRC2 if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is given in the Registration Statement and the Prospectus, any Material Adverse Effect occursadverse change or development involving a prospective adverse change in or affecting particularly the condition, whichfinancial or otherwise, of WFSRC2 or WFS or the earnings, affairs or business prospects of WFSRC2 or WFS, whether or not arising in the ordinary course of business, which would, in the reasonable judgment of the RepresentativesRepresentative, makes it impracticable make the offering or inadvisable to market the Securities or to enforce contracts for sale delivery of the Securitiesany class of Notes impracticable, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or act of terrorism or material adverse change in economic conditions, if the effect of such outbreak, calamity, crisis, act of terrorism or change on the financial markets of the United States or elsewhere, or any other substantial national or international calamity or emergency if the effect of such outbreak, escalation, calamity, crisis or emergency elsewhere would, in the reasonable judgment of the RepresentativesRepresentative, make it impracticable the offering or inadvisable to market the Securities or to enforce contracts for the sale delivery of the Securitiesany class of Notes impracticable, (iii) any suspension or limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange or the American Stock Exchange or limitation on prices (other than limitations on hours or numbers of days of trading) for securities on either such Exchange, (iv) the NYSE Amex Equitiesenactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which in the reasonable opinion of the Representative materially and adversely affects, or will materially and adversely affect, the NASDAQ Stock Market business or any setting operations of minimum prices for trading on such exchange WFSRC2 or marketsWFS, or (v) a material disruption has occurred in commercial banking or securities settlement settlement, payment or clearance services in the United States, (ivvi) any declaration of a general banking moratorium by federal, either federal or New York State authorities or Maryland authorities, (vvii) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your judgment the reasonable opinion of the Representative has a material adverse effect on the financial markets in the United States, and would, in the judgment of the Representatives, make it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decree, or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made pursuant to this Agreement shall remain operative and in full force and effect, and will survive delivery of and payment for the Securities, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securities) of the second paragraph of this Section 11 or because of the failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any termination of this Agreement, the Company shall be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereof. Except as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement shall become effective upon the execution and delivery of this Agreement by the parties heretoAgreement. This Agreement may be terminated at any time on or prior to the Closing Date by you by written notice to the Company if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is given in the Registration Statement and the Prospectus, any Material Adverse Effect occursmaterial adverse change or development involving a prospective material adverse change in the condition, whichfinancial or otherwise, of the Company or any of its subsidiaries or the earnings, affairs, or business prospects of the Company or any of its subsidiaries, whether or not arising in the ordinary course of business, which would, in the judgment of the Representativesyour judgment, makes make it impracticable or inadvisable to market or consummate the Securities or to enforce contracts for sale of the SecuritiesShares on the terms and in the manner contemplated in the Prospectus, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in economic conditions or in the financial markets of the United States or elsewhereelsewhere that, or any other substantial national or international calamity or emergency if the effect of such outbreakin your judgment, escalation, calamity, crisis or emergency is material and adverse and would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to market the Securities or to enforce contracts for Shares on the sale of terms and in the Securitiesmanner contemplated in the Prospectus, (iii) any trading of the Shares shall have been suspended on the Nasdaq National Market System, (iv) the suspension or material limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, American Stock Exchange or the NASDAQ Stock Nasdaq National Market System or any setting of minimum limitation on prices for trading securities on any such exchange or marketsNational Market System, (v) the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which in your opinion materially and adversely affects, or a material disruption has occurred in commercial banking will materially and adversely affect, the business or securities settlement operations of the Company or clearance services in the United Statesany Subsidiary, (ivvi) any the declaration of a general banking moratorium by federal, either federal or New York State authorities or Maryland authorities, (vvii) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your judgment opinion has a material adverse effect on the financial markets in the United States, and would, in the judgment of the Representatives, make it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities . If on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decree, or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made pursuant to this Agreement shall remain operative and in full force and effect, and will survive delivery of and payment for the Securities, regardless of (i) any investigation, or statement as to the results thereof, made by Closing Date or on behalf of the Option Closing Date, as the case may be, any one or more of the Underwriters shall fail or by refuse to purchase the Shares which it or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securities) of the second paragraph of this Section 11 or because of the failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any termination of this Agreement, the Company shall be liable for all expenses which they have agreed to pay pursuant purchase hereunder on such date and the aggregate number of Shares which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to Section 5(e) hereof. Except as otherwise providedpurchase is not more than one-tenth of the total number of Shares to be purchased on such date by all Underwriters, this Agreement has been and is made solely for the benefit of and each non-defaulting Underwriter shall be binding upon obligated severally, in the Company, proportion which the number of Firm Shares set forth opposite its name in Schedule I bears to the total number of Firm Shares which all the non-defaulting Underwriters, any Indemnified Person referred as the case may be, have agreed to herein and their respective successors and assignspurchase, all or in such other proportion as and you may specify, to purchase the extent provided in this AgreementShares which such defaulting Underwriter or Underwriters, and no other person shall acquire as the case may be, agreed but failed or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such refused to purchase.
Appears in 1 contract
Samples: Underwriting Agreement (Chancellor Media Corp of Los Angeles)
Effective Date of Agreement and Termination. This Agreement shall ------------------------------------------- become effective upon the later of (i) the execution and delivery of this Agreement by the parties hereto, (ii) the effectiveness of the Registration Statement, and (iii) if a post-effective amendment is required to be filed pursuant to Rule 430A under the Act, the effectiveness of such post-effective amendment. This Agreement may be terminated at any time on or prior to the Closing Date by you by notice to the Company if any of the following has occurred: (i) on subsequent to the date the Registration Statement is declared effective or after the Applicable Timedate of this Agreement, any Material Adverse Effect occurs, Change occurs which, in the judgment of the Representativesyour judgment, makes it impracticable or inadvisable to market the Securities Shares or to enforce contracts for the sale of the SecuritiesShares, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in the financial markets of the United States or elsewhereelse- where, or any other substantial national or international calamity or emergency if the effect of such outbreak, escalation, calamity, crisis or emergency would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to market the Securities Shares or to enforce contracts for the sale of the SecuritiesShares, (iii) any suspension or limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex EquitiesAmerican Stock Exchange, the NASDAQ Nasdaq Stock Market or in the over-the-counter markets or any setting of minimum prices for trading on such exchange exchanges or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iv) any declaration of a general banking moratorium by federalFederal, New York or Maryland authorities, (v) the taking of any action by any federalFederal, state or local government or agency in respect of its monetary or fiscal affairs that in your judgment has a material adverse effect on the financial markets in the United States, and would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to proceed with market the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus Shares or to enforce contracts for the sale of the Securities Shares or (vi) the enactment, publication, decree, or other promulgation of any federal Federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representativesyour judgment, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and of the Underwriters set forth in or made pursuant to this Agreement shall remain operative and in full force and effect, and will survive delivery of and payment for the SecuritiesShares, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its the officers or directors of the Company or any controlling person thereofof the Company, (ii) acceptance of the Securities Shares and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses clause (i) or (iii) (with respect to the Company’s securities) of the second paragraph of this Section 11 10 or because of the failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses (including the reasonable fees and disbursements of counsel) incurred by you. Notwithstanding any termination of this Agreement, the Company shall be liable for all expenses which they have it has agreed to pay pursuant to Section 5(e5(k) hereof. Except as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “"successors and assigns” " shall not include a purchaser of any of the Securities Shares from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement shall become effective upon the later of (i) execution and delivery of this Agreement and (ii) when notification of the effectiveness of the Registration Statement has been released by the parties heretoCommission. This Agreement may be terminated at any time on or prior to the Closing Date by you by written notice to the Company and the Selling Stockholders if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is given in the Registration Statement and the Prospectus, any Material Adverse Effect occursadverse change or development involving a prospective adverse change in the condition, whichfinancial or otherwise, of the Company or any of its subsidiaries or the earnings, affairs, or business prospects of the Company or any of its subsidiaries, whether or not arising in the ordinary course of business, which would, in the judgment of the Representativesyour reasonable judgment, makes make it impracticable or inadvisable to market the Securities or to enforce contracts for sale of Shares on the Securitiesterms and in the manner contemplated in the Prospectus, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in the financial markets of the United States or elsewhereeconomic conditions, or any other substantial national or international calamity or emergency if the effect of such outbreak, escalation, calamity, crisis or emergency change on the financial markets of the United States or elsewhere would, in the judgment of the Representativesyour reasonable judgment, make it impracticable or inadvisable to market the Securities or to enforce contracts for Shares on the sale of terms and in the Securitiesmanner contemplated in the Prospectus, (iii) any the suspension or limitation material limitation, generally, of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, American Stock Exchange or the NASDAQ Stock National Market or any setting of minimum limitation on prices for trading securities on any such exchange or marketsNational Market, or a material disruption has occurred in commercial banking or securities settlement or clearance services specifically, of trading on the NASDAQ National Market in the United StatesCompany's Common Stock, (iv) the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which in your reasonable opinion materially and adversely affects, or will materially and adversely affect, the business or operations of the Company or any of its subsidiaries, (v) the declaration of a general banking moratorium by federal, either federal or New York State authorities or Maryland authorities, (vvi) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your judgment reasonable opinion has a material adverse effect on the financial markets in the United States. If on the Closing Date or on the Option Closing Date, as the case may be, any one or more of the Underwriters shall fail or refuse to purchase the Firm Shares or Additional Shares, as the case may be, which it or they have agreed to purchase hereunder on such date and wouldthe aggregate number of Firm Shares or Additional Shares, as the case may be, which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase is not more than one-tenth of the total number of Shares to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, in the judgment proportion which the number of Firm Shares set forth opposite its name in Schedule I bears to the Representativestotal number of Firm Shares which all the non-defaulting Underwriters, make it impracticable or inadvisable as the case may be, have agreed to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decreepurchase, or in such other promulgation proportion as you may specify, to purchase the Firm Shares or Additional Shares, as the case may be, which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase on such date; provided that in no event shall the number of Firm Shares or Additional Shares, as the case may be, which any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made Underwriter has agreed to purchase pursuant to Section 2 hereof be increased pursuant to this Agreement Section 10 by an amount in excess of one-ninth of such number of Firm Shares or Additional Shares, as the case may be, without the written consent of such Underwriter. If on the Closing Date or on the Option Closing Date, as the case may be, any Underwriter or Underwriters shall remain operative and in full force and effectfail or refuse to purchase Firm Shares, or Additional Shares, as the case may be, and will survive delivery the aggregate number of and payment for Firm Shares or Additional Shares, as the Securitiescase may be, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securities) which such default occurs is more than one-tenth of the second paragraph aggregate number of Shares to be purchased on such date by all Underwriters in the event of a default by an Underwriter and arrangements satisfactory to you and the Company and the Selling Stockholders for purchase of such Shares are not made within 48 hours after such default, this Section 11 or because of the failure or refusal Agreement will terminate without liability on the part of any non-defaulting Underwriter and Company and the Company to comply with the terms or to fulfill Selling Stockholders. In any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any such case which does not result in termination of this Agreement, either you or the Company and the Selling Stockholders shall have the right to postpone the Closing Date or the Option Closing Date, as the case may be, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement and the Prospectus or any other documents or arrangements may be effected. The cost of preparing, printing and filing any such amendments to the Registration Statement or the Prospectus that may be necessary shall be liable paid for all expenses which they have agreed to pay pursuant to Section 5(e) hereof. Except as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the Company, by the Underwriters, . Any action taken under this paragraph shall not relieve any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided defaulting Underwriter from liability in respect of any default of any such Underwriter under this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement shall become effective upon the later of (i) the execution and delivery of this Agreement by the parties hereto, (ii) the effectiveness of the Registration Statement, and (iii) if a post-effective amendment is required to be filed pursuant to Rule 430A under the Act, the effectiveness of such post-effective amendment. This Agreement may be terminated at any time on or prior to the Closing Date by you by notice to the Company if any of the following has occurred: (i) on subsequent to the date the Registration Statement is declared effective or after the Applicable Timedate of this Agreement, any Material Adverse Effect occurs, Change occurs which, in the judgment of the Representativesany Underwriter, makes make it impracticable or inadvisable to market the Securities or to enforce contracts for the sale of the Securities, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in economic conditions or in the financial markets of the United States or elsewhere, or any other substantial national or international calamity or emergency if the effect of such outbreak, escalation, calamity, crisis crisis, change or emergency would, in the judgment of the Representativesany Underwriter, make it impracticable or inadvisable to market the Securities or to enforce contracts for on the sale of terms and in the Securitiesmanner contemplated by the Prospectus, (iii) any suspension or limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex EquitiesAmerican Stock Exchange, the NASDAQ Nasdaq Stock Market or in the over-the-counter markets or any setting of minimum prices for trading on such exchange exchanges or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iv) any declaration of a general banking moratorium by federalFederal, New York or Maryland Kentucky authorities, (v) the taking of any action by any federalFederal, state or local government or agency in respect of its monetary or fiscal affairs that in your judgment has a material adverse effect on the financial markets in the United States, and would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to proceed with the offering, sale or delivery of market the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or Securities, (vi) the enactment, publication, decree, or other promulgation of any federal Federal or state statute, regulation, rule or order of any court or other governmental authority which which, in your judgment, materially and adversely affects or will materially and adversely affect the business or operations of the Company or any Subsidiary, or (vii) any securities of the Company or any of the Subsidiaries shall have been downgraded or placed on any "watch list" for possible downgrading by any nationally recognized statistical rating organization, PROVIDED, that in the case of such "watch list" placement, termination shall be permitted only if such placement would, in the judgment of any Underwriter, make it impracticable or inadvisable to market the Representatives, have a Material Adverse EffectSecurities or to enforce contracts for the sale of the Securities or materially impair the investment quality of the Securities. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and of the Underwriters set forth in or made pursuant to this Agreement shall remain operative and in full force and effect, and will survive delivery of and payment for the Securities, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its the officers or directors of the Company or any controlling person thereofof the Company, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securitiesvii) of the second paragraph of this Section 11 10 or because of the failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses (including the fees and disbursements of counsel) incurred by you. Notwithstanding any termination of this Agreement, the Company shall be liable for all expenses which they have it has agreed to pay pursuant to Section 5(e4(k) hereof. Except as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement shall ------------------------------------------- become effective upon the later of (i) execution and delivery of this Agreement Agreement, (ii) when notification of the effectiveness of the Registration Statement has been released by the parties heretoCommission and (iii) if a post-effective amendment to the Registration Statement has been filed (including any post-effective amendment required to be filed pursuant to Rule 430A or Rule 462 under the Act), the effectiveness of such post-effective amendment. Until this Agreement becomes effective as aforesaid, it may be terminated by the Company and the Selling Stockholders by notifying the Underwriters or by the Underwriters by notifying the Company and the Attorney-in-Fact. This Agreement may be terminated at any time on or prior to the Closing Date by you by written notice to the Company and the Attorney-in-Fact if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is given in the Registration Statement and the Prospectus, any Material Adverse Effect occursChange or development involving a prospective Material Adverse Change, whichwhether or not arising in the ordinary course of business, which would, in the judgment of the Representativesyour judgment, makes make it impracticable or inadvisable to market the Securities or to enforce contracts for sale of Shares on the Securitiesterms and in the manner contemplated in the Prospectus, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in economic conditions or in the financial markets of the United States or elsewhereelsewhere that, or any other substantial national or international calamity or emergency if the effect of such outbreakin your judgment, escalation, calamity, crisis or emergency is material and adverse and would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to market the Securities or to enforce contracts for Shares on the sale of terms and in the Securitiesmanner contemplated in the Prospectus, (iii) any the suspension or material limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, American Stock Exchange or the NASDAQ Stock Nasdaq National Market or any setting of minimum limitation on prices for trading securities on any such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United StatesNasdaq National Market, (iv) the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which in your opinion materially and adversely affects, or will materially and adversely affect, the business or operations of the Company or any of its subsidiaries, (v) the declaration of a general banking moratorium by federal, either federal or New York State authorities or Maryland authorities, (vvi) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your judgment opinion has a material adverse effect on the financial markets in the United States. If on the Closing Date or on an Option Closing Date, as the case may be, any one or more of the Underwriters shall fail or refuse to purchase the Firm Shares or Additional Shares, as the case may be, which it or they have agreed to purchase hereunder on such date and wouldthe aggregate number of Firm Shares or Additional Shares, as the case may be, which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase is not more than one-tenth of the total number of Shares to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, in the judgment proportion which the number of Firm Shares set forth opposite its name in Schedule I bears to the Representativestotal number of Firm Shares which all the non-defaulting Underwriters, make it impracticable or inadvisable as the case may be, have agreed to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decreepurchase, or in such other promulgation proportion as you may specify, to purchase the Firm Shares or Additional Shares, as the case may be, which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase on such date; provided that in no event shall the number of Firm Shares or Additional Shares, as the case may be, which any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made Underwriter has agreed to purchase pursuant to Section 2 hereof be increased pursuant to this Agreement Section 11 by an amount in excess of one-ninth of such number of Firm Shares or Additional Shares, as the case may be, without the written consent of such Underwriter. If on the Closing Date or an Option Closing Date, as the case may be, any Underwriter or Underwriters shall remain operative and in full force and effectfail or refuse to purchase Firm Shares or Additional Shares, as the case may be, and will survive delivery the aggregate number of and payment for Firm Shares or Additional Shares, as the Securitiescase may be, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securities) which such default occurs is more than one-tenth of the second paragraph aggregate number of Shares to be purchased on such date by all Underwriters and arrangements satisfactory to you and the applicable Sellers for purchase of such Shares are not made within 48 hours after such default, this Section 11 or because of the failure or refusal Agreement will terminate without liability on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreementnon-defaulting Underwriter, the Company agrees to reimburse you for all out-of-pocket expenses incurred by youand the applicable Sellers. Notwithstanding In any such case which does not result in termination of this Agreement, either you or the Company Sellers shall have the right to postpone the Closing Date or the applicable Option Closing Date, as the case may be, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement and the Prospectus or any other documents or arrangements may be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereofeffected. Except as otherwise provided, Any action taken under this Agreement has been and is made solely for the benefit paragraph shall not relieve any defaulting Underwriter from liability in respect of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in default of any such Underwriter under this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Samples: Underwriting Agreement (Brown & Sharpe Manufacturing Co /De/)
Effective Date of Agreement and Termination. This Agreement shall will become effective upon the execution and delivery of this Agreement by you and the parties heretoCompany. This Agreement may be terminated by you in your absolute discretion by giving written notice to the Company at any time on or prior to the Closing Date by you by notice Time of Purchase or, with respect to the Company purchase of the Option Shares, on or prior to the Additional Time of Purchase, as the case may be, if prior to such time any of the following has occurredoccurred or, in your opinion, is likely to occur: (i) after the respective dates as of which information is given in the Registration Statement and the Prospectus Supplement/Prospectus (or, if the Prospectus Supplement/Prospectus is not in existence, the most recent Preliminary Prospectus Supplement/Prospectus), any material adverse change or development involving a prospective material adverse change in or affecting particularly the business, results of operations, condition (financial or other), or prospects of the Company, whether or not arising in the ordinary course of business, occurs which would, in your sole judgment, make the offering or the delivery of the Shares impracticable or inadvisable; (ii) if, on or after the Applicable Timedate of this Agreement, any Material Adverse Effect occurs, which, there has been (x) the engagement in hostilities or an escalation of major hostilities by the judgment United States or the declaration of war or a national emergency by the Representatives, makes it impracticable United States or inadvisable to market the Securities or to enforce contracts for sale of the Securities, (iiy) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in economic or political conditions, if the effect of such outbreak, calamity, crisis or change in economic or political conditions referred to in this clause (ii)(y) on the financial markets of the United States or elsewhere, or any other substantial national or international calamity or emergency if the effect of such outbreak, escalation, calamity, crisis or emergency would, in your sole judgment, make the judgment offering or delivery of the Representatives, make it Shares impracticable or inadvisable to market the Securities or to enforce contracts for the sale of the Securities, inadvisable; (iii) any if there has been a suspension or limitation of trading in the Company’s securities generally or a material adverse decline in trading value of securities generally in securities on the New York Stock Exchange, the NYSE Amex Equities, American Stock Exchange or the NASDAQ Stock Nasdaq National Market or any setting limitations on prices (other than limitations on hours or numbers of minimum prices days of trading) for trading securities on either such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, system; (iv) if there has been the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of, or commencement of any proceeding or investigation by, any court, legislative body, agency or other governmental authority which in your sole judgment materially and adversely affects or may materially and adversely affect the business, results of operations, condition (financial or other) or prospects of the Company; (v) if there has been the declaration of a general banking moratorium by federal, New York or Maryland California state authorities, ; (vvi) the taking of if there has been any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your sole judgment has a material adverse effect on the financial securities markets in the United States, and would, in States or makes the judgment of the Representatives, make it impracticable or inadvisable to proceed with the offering, sale offering or delivery of the Securities on shares impractical or inadvisable; or (vii) existing international monetary conditions have undergone a material change which, in your sole judgment, makes the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus offering or to enforce contracts for the sale delivery of the Securities Shares impracticable or (vi) the enactment, publication, decree, or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made pursuant to this Agreement shall remain operative and in full force and effect, and will survive delivery of and payment for the Securities, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreementinadvisable. If this Agreement shall be is terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securities) of the second paragraph of this Section 11 or because of the failure or refusal on the part 8, there will be no liability of the Company to comply with the terms or Underwriters (except pursuant to fulfill any of the conditions Section 4 and Section 7 of this Agreement, ) and no liability of the Underwriters to the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any termination of this Agreement, the Company shall be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereof. Except as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and (except to the extent provided in this Agreement, and no other person shall acquire or have any right under or by virtue Section 7 of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase).
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement shall become effective upon the execution and delivery of this Agreement by the parties hereto. This Agreement may be terminated at any time on or prior to the Closing Date by you by notice to the Company if any of the following has occurred: (i) on or after subsequent to the Applicable Timedate of this Agreement, any Material Adverse Effect Change occurs, which, in the judgment of the RepresentativesDLJ's and BT's judgment, makes it impracticable or inadvisable to market the Securities or to enforce contracts for sale of the Securities, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in the financial markets of the United States or elsewhere, or any other substantial national or international calamity or emergency if the effect of such outbreak, escalation, calamity, crisis or emergency would, in the judgment of the RepresentativesDLJ's and BT's judgment, make it impracticable or inadvisable to market the Securities or to enforce contracts for the sale of the Securities, (iii) any suspension or limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex EquitiesAmerican Stock Exchange, the NASDAQ Nasdaq Stock Market or in the over-the-counter markets or any setting of minimum prices for trading on such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, (iv) any declaration of a general banking moratorium by federaleither Federal, New York York, or Maryland authorities, (v) the taking of any action by any federalFederal, state or local government or agency in respect of its monetary or fiscal affairs that in your judgment has a material adverse effect on the financial markets in the United States, and would, in the judgment of the RepresentativesDLJ's and BT's judgment, make it impracticable or inadvisable to proceed with the offering, sale or delivery of market the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or Securities, (vi) the enactment, publication, decree, or other promulgation of any federal Federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the RepresentativesDLJ's and BT's judgment, have a Material Adverse Effect, or (vii) the Securities or any securities of Host Marriott shall have been downgraded or placed on any "watch list" for possible downgrading by any nationally recognized statistical rating organization, provided, that in the case of such "watch list" placement, termination shall be permitted only if such placement would, in the judgment of any Underwriter, make it impracticable or inadvisable to market the Securities or to enforce contracts for the sale of the Securities or materially impair the investment quality of the Securities. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its the Guarantors, their respective officers and directors and the Underwriters set forth in or made pursuant to this Agreement shall remain operative and in full force and effect, and will survive delivery of and payment for the Securities, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the CompanyCompany or any Guarantor, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder hereunder, and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securitiesvii) of the second paragraph of this Section 11 10 or because of the failure or refusal on the part of the Company or any Guarantor to comply with the terms or to fulfill any of the conditions of this Agreement, the Company agrees and the Guarantors agree to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any termination of this Agreement, the Company and the Guarantors shall be liable for all expenses which they have agreed to pay pursuant to Section 5(e5(l) hereof. Except as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the Company, the Guarantors, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “"successors and assigns” " shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement shall become effective upon the execution and delivery of this Agreement by the parties heretoAgreement. This Agreement may be terminated at any time on or prior to the Closing Date by you the Representatives by written notice to the Company and the Selling Stockholder if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is given in the Registration Statement and Prospectus and since the Time of Sale, any Material Adverse Effect occurs, which, in the judgment of the Representatives, makes it impracticable or inadvisable to market the Securities or to enforce contracts for sale of the Securities, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change or development involving a prospective material adverse change (including, without limitation, the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority) in the condition, financial markets or otherwise, of the United States Company and its subsidiaries taken as a whole or elsewherethe earnings, affairs, or any other substantial national business prospects of the Company and its subsidiaries taken as a whole, whether or international calamity or emergency if not arising in the effect ordinary course of such outbreakbusiness, escalation, calamity, crisis or emergency which would, in the judgment of the Representatives, make it impracticable or inadvisable to market the Securities Shares on the terms and in the manner contemplated in the Prospectus, (ii) any outbreak or to enforce contracts for escalation of hostilities or other national or international calamity or crisis (including, without limitation, an act of terrorism) or change in economic conditions or in the sale financial markets of the SecuritiesUnited States or elsewhere that, in the judgment of the Representatives, is material and adverse and would, in the judgment of the Representatives, make it impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus, (iii) any the suspension or material limitation of trading in the Company’s securities generally, or in trading generally in the securities of the Company listed, on the New York Stock Exchange, the NYSE Amex Equities, the American Stock Exchange or The NASDAQ Stock Market or Market, limitation on prices on any setting of minimum prices for trading on such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United Statesexchange, (iv) any declaration of a general banking moratorium material disruption in securities settlement that makes it impracticable to deliver the Shares in the manner contemplated by federalthe Prospectus, New York or Maryland authorities, (v) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your judgment the opinion of the Representatives has a material adverse effect on the financial markets in the United States. If on the Closing Date any one or more of the Underwriters shall fail or refuse to purchase and pay for any of the Shares which it or they have agreed to purchase hereunder on such date and the number of Shares which such defaulting Underwriter or Underwriters, and wouldas the case may be, agreed but failed or refused to purchase is not more than one-tenth of the total number of Shares to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, in the judgment proportion which the number of Shares set forth opposite its name in Schedule I bears to the total number of Shares which all the non-defaulting Underwriters, as the case may be, have agreed to purchase, or in such other proportion as you may specify, to purchase the Shares which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase on such date; provided that in no event shall the number of Shares which any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased pursuant to this Section 12 by an amount in excess of one-ninth of the Representatives, make it impracticable number of Shares without the written consent of such Underwriter. If on the Closing Date any Underwriter or inadvisable Underwriters shall fail or refuse to proceed purchase Shares and the aggregate number of Shares with the offering, sale or delivery respect to which such default occurs is more than one-tenth of the Securities aggregate number of Shares to be purchased on the terms such date by all Underwriters and in the manner contemplated by this Agreementarrangements satisfactory to you, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decree, or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or Selling Stockholder for purchase of such Shares are not made pursuant to within 48 hours after such default, this Agreement shall remain operative and in full force and effect, and will survive delivery of and payment for the Securities, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securities) of the second paragraph of this Section 11 or because of the failure or refusal terminate without liability on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreementnon-defaulting Underwriter, the Company agrees to reimburse you for all out-of-pocket expenses incurred by youor the Selling Stockholder. Notwithstanding In any such case which does not result in termination of this Agreement, either you, the Selling Stockholder or the Company shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement and the Prospectus or any other documents or arrangements may be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereofeffected. Except as otherwise provided, Any action taken under this Agreement has been and is made solely for the benefit paragraph shall not relieve any defaulting Underwriter from liability in respect of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in default of any such Underwriter under this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Samples: Underwriting Agreement (Capital One Financial Corp)
Effective Date of Agreement and Termination. This Agreement shall become effective upon the later of (i) execution and delivery of this Agreement and (ii) when notification of the effectiveness of the Registration Statement has been released by the parties heretoCommission. This Agreement may be terminated at any time on or prior to the Closing Date by you by written notice to the Company if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is given in the Registration Statement and the Prospectus, any Material Adverse Effect occursadverse change or development involving a prospective adverse change in the condition, whichfinancial or otherwise, of the Company or any of its subsidiaries or the earnings, affairs, or business prospects of the Company or any of its subsidiaries, whether or not arising in the ordinary course of business, which would, in the judgment of the Representativesyour judgment, makes make it impracticable or inadvisable to market the Securities or to enforce contracts for sale of on the Securitiesterms and in the manner contemplated in the Prospectus, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in economic conditions or in the financial markets of the United States or elsewhereelsewhere that, or any other substantial national or international calamity or emergency if the effect of such outbreakin your judgment, escalation, calamity, crisis or emergency is material and adverse and would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to market the Securities or to enforce contracts for on the sale of terms and in the Securitiesmanner contemplated in the Prospectus, (iii) any the suspension or material limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, American Stock Exchange or the NASDAQ Stock National Market System or any setting of minimum limitation on prices for trading securities on any such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United StatesNational Market System, (iv) any declaration of a general banking moratorium by federal, New York or Maryland authorities, (v) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that in your judgment has a material adverse effect on the financial markets in the United States, and would, in the judgment of the Representatives, make it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decree, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which wouldin your opinion materially and adversely affects, or will materially and adversely affect, the business or operations of the Company or any If on the Closing Date any one or more of the Underwriters shall fail or refuse to purchase the Securities which it or they have agreed to purchase hereunder on such date and the aggregate principal amount of Securities which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase is not more than one-tenth of the total principal amount of the Securities to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, in the judgment proportion which the principal amount of Securities set forth opposite its name in Schedule I bears to the Representativestotal principal amount of Securities which all the non- defaulting Underwriters, as the case may be, have a Material Adverse Effect. The indemnities and contribution provisions and agreed to purchase, or in such other proportion as you may specify, to purchase the other agreementsSecurities which such defaulting Underwriter or Underwriters, representations and warranties as the case may be, agreed but failed or refused to purchase on such date; provided that in no event shall the principal amount of the Company, its officers and directors and the Underwriters set forth in or made Securities which any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased pursuant to this Agreement shall remain operative and Section 9 by an amount in full force and effect, and will survive delivery excess of and payment for the one-ninth of such principal amount of Securities, regardless without the written consent of (i) such Underwriter. If on the Closing Date any investigation, Underwriter or statement as Underwriters shall fail or refuse to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the purchase Securities and payment for them hereunder and (iii) termination the aggregate principal amount of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (Securities with respect to the Company’s securities) which such default occurs is more than one-tenth of the second paragraph aggregate principal amount of Securities to be purchased on such date by all Underwriters and arrangements satisfactory to you and the Company for purchase of such Securities are not made within 48 hours after such default, this Section 11 or because of the failure or refusal Agreement will terminate without liability on the part of any non-defaulting Underwriter and the Company to comply with the terms or to fulfill Company. In any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any such case which does not result in termination of this Agreement, either you or the Company shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement and the Prospectus or any other documents or arrangements may be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereofeffected. Except as otherwise provided, Any action taken under this Agreement has been and is made solely for the benefit paragraph shall not relieve any defaulting Underwriter from liability in respect of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in default of any such Underwriter under this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Effective Date of Agreement and Termination. (a) This Agreement shall become effective upon the later of (i) the execution and delivery of this Agreement hereof by the parties heretohereto and (ii) release of notification of effectiveness of the Registration Statement by the Commission. This By giving notice before the time this Agreement becomes effective, you, or the Company, may be terminated prevent this Agreement from becoming effective, without liability of any party to any other party, except that the Company shall remain obligated to pay costs and expenses to the extent provided in Section 4 hereof.
(b) You may terminate this Agreement, by notice to the Company and the Trust, at any time on at or prior to the Closing Date by you by notice to the Company if any of the following has occurred: Time (i) on in accordance with the last paragraph of Section 5 of this Agreement, or after the Applicable Time, any Material Adverse Effect occurs, which, in the judgment of the Representatives, makes it impracticable or inadvisable to market the Securities or to enforce contracts for sale of the Securities, (ii) if there has been since the respective dates as of which information is given in the Registration Statement, any new material adverse change, or any development involving a prospective material adverse change, in or affecting the business, prospects, management, properties, assets, results of operations or condition (financial or otherwise) of the Company, whether or not arising in the ordinary course of business, or (iii) if there has occurred or accelerated any outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in economic or political conditions the effect of which on the financial markets of the United States or elsewhere, or any other substantial national or international calamity or emergency if the effect of is such outbreak, escalation, calamity, crisis or emergency wouldas to make it, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to market the Securities Shares or to enforce contracts for the sale of the Preferred Securities, or (iiiiv) any suspension or limitation of if trading in any securities of the Company’s securities Company has been suspended by the Commission or in by the Nasdaq Stock Market or if trading generally in securities on the New York Stock ExchangeExchange or in the over-the-counter market has been suspended, the NYSE Amex Equities, the NASDAQ Stock Market or any setting of minimum limitations on prices for trading (other than limitations on such exchange hours or marketsnumbers of days of trading) have been fixed, or a material disruption has occurred in commercial banking maximum ranges for prices for securities have been required, by the NASD or securities settlement by order of the Commission or clearance services in the United Statesany other governmental authority, (iv) any declaration of a general banking moratorium by federal, New York or Maryland authorities, (v) the taking if a banking moratorium has been declared by federal or New York, Kentucky or Indiana authorities, or (vi) any federal or state statute, regulation, rule or order of any court or other governmental authority has been enacted, published, decreed or otherwise promulgated which in your reasonable opinion materially adversely affects or will materially adversely affect the business or operations of the Company, or (vii) any action has been taken by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your judgment reasonable opinion has a material adverse effect on the financial securities markets in the United States, and would, in the judgment of the Representatives, make it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by .
(c) If this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decree, or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made Agreement is terminated pursuant to this Agreement Section 8, such termination shall remain operative and in full force and effect, and will survive delivery of and payment for the Securities, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf be without liability of any of the Underwriters or by or on behalf of the Companyparty to any other party, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securities) of the second paragraph of this Section 11 or because of the failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any termination of this Agreement, the Company shall be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereof. Except as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and except to the extent provided in this AgreementSection 4. Notwithstanding any such termination, and no other person the provisions of Section 6 shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchaseremain in effect.
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement shall become effective upon the execution and delivery of this Agreement by the parties hereto. This Agreement may be terminated at any time on or prior to the Closing Date by you the Initial Purchaser by written notice to the Company Issuer if any of the following has occurred: :
(ia) the Issuer or any Guarantor shall have failed, refused or been unable to perform in any material respect any agreement on its part to be performed hereunder;
(b) any other condition to the obligations of the Initial Purchaser hereunder as provided in Section 9 of this Agreement is not fulfilled when and as required unless waived by the Initial Purchaser in accordance with the provisions of Section 9;
(c) any outbreak or after the Applicable Timeescalation of hostilities, any Material Adverse Effect occurs, which, in the judgment declaration of the Representatives, makes it impracticable or inadvisable to market the Securities or to enforce contracts for sale of the Securities, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in the financial markets of war by the United States or elsewhereStates, or any other substantial national or international calamity calamity, emergency or emergency if crisis (including acts of terrorism), any material adverse change in economic conditions in, or the financial markets of, the United States or any change in national or international political, financial or economic conditions, in each case, the effect of such outbreak, escalation, calamity, crisis or emergency wouldwhich could make it, in the judgment of the RepresentativesInitial Purchaser’s sole judgment, make it impracticable or inadvisable to market or proceed with the Securities offering or delivery of the Notes on the terms and in the manner contemplated in the Disclosure Package and the Final Offering Circular or to enforce contracts for the sale of any of the Securities, Notes;
(iiid) any the suspension or material limitation of trading in the Company’s securities or in trading generally in securities other instruments on the New York Stock Exchange, the NYSE Amex EquitiesAmerican Stock Exchange, the NASDAQ Stock Chicago Board of Options Exchange, the Chicago Mercantile Exchange, the Chicago Board of Trade or the Nasdaq National Market or any setting of minimum limitation on prices for trading securities or other instruments on any such exchange or marketsthe Nasdaq National Market;
(e) the suspension of trading of any securities of the Issuer on any exchange or in the over-the-counter market;
(f) the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other Governmental Authority which in the Initial Purchaser’s reasonable opinion materially and adversely affects, or will materially and adversely affect, the properties, business, prospects, operations, earnings, assets, liabilities or condition (financial or otherwise) of the Issuer and the Subsidiaries, taken as a material disruption has occurred in commercial banking or securities settlement or clearance services in whole;
(g) the United States, (iv) any declaration of a general banking moratorium by federal, either federal or New York or Maryland State authorities, ; or
(vh) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your judgment the Initial Purchaser’s reasonable opinion has a material adverse effect on the financial markets in the United States, and would, in the judgment of the Representatives, make it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decree, or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made pursuant to this Agreement shall remain operative and in full force and effect, and will survive delivery of and payment for the Securities, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securities) of the second paragraph of this Section 11 or because of the failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any termination of this Agreement, the Company shall be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereof. Except as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement shall become effective upon the execution and delivery of this Agreement by the parties heretoAgreement. This Agreement may be terminated at any time on or prior to the Closing Date by you the Representatives by written notice to the Company if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is given in the Registration Statement and the Prospectus, any Material Adverse Effect occurs, which, in the judgment of the Representatives, makes it impracticable or inadvisable to market the Securities or to enforce contracts for sale of the Securities, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change or development involving a prospective material adverse change (including, without limitation, the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority) in the condition, financial markets or otherwise, of the United States Company and its subsidiaries taken as a whole or elsewherethe earnings, affairs, or any other substantial national business prospects of the Company and its subsidiaries taken as a whole, whether or international calamity or emergency if not arising in the effect ordinary course of such outbreakbusiness, escalation, calamity, crisis or emergency which would, in the judgment of the Representatives, make it impracticable or inadvisable to market the Securities on the terms and in the manner contemplated in the Prospectus, (ii) any outbreak or to enforce contracts for escalation of hostilities or other national or international calamity or crisis (including, without limitation, an act of terrorism) or change in economic conditions or in the sale financial markets of the SecuritiesUnited States or elsewhere that, in the judgment of the Representatives, is material and adverse and would, in the judgment of the Representatives, make it impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus, (iii) any the suspension or material limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, American Stock Exchange or the NASDAQ Stock National Market or System, limitation on prices on any setting of minimum prices for trading on such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United StatesNational Market System, (iv) any declaration of a general banking moratorium material disruption in securities settlement that makes it impracticable to deliver the Securities in the manner contemplated by federalthe Prospectus, New York or Maryland authorities, (v) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your judgment the opinion of the Representatives has a material adverse effect on the financial markets in the United States, and would, in the judgment of the Representatives, make it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decree, or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made pursuant to this Agreement shall remain operative and in full force and effect, and will survive delivery of and payment for the Securities, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securities) of the second paragraph of this Section 11 or because of the failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any termination of this Agreement, the Company shall be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereof. Except as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement shall ------------------------------------------- become effective upon the execution and delivery of this Agreement by the parties hereto. This Agreement may be terminated at any time on or prior to the Closing Date by you by written notice to the Company Sellers if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is given in the Registration Statement and the Prospectus, any Material Adverse Effect occursmaterial adverse change or development involving a prospective material adverse change in the condition, whichfinancial or otherwise, of the Company and the Subsidiary, taken as a whole, or the earnings, affairs, or business prospects of the Company and the Subsidiary, taken as a whole, whether or not arising in the ordinary course of business, which would, in the judgment of the Representativesyour judgment, makes make it impracticable or inadvisable to market the Securities or to enforce contracts for sale of Shares on the Securitiesterms and in the manner contemplated in the Prospectus, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in economic conditions or in the financial markets of the United States or elsewhereelsewhere that, or any other substantial national or international calamity or emergency if the effect of such outbreakin your judgment, escalation, calamity, crisis or emergency is material and adverse and would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to market the Securities or to enforce contracts for Shares on the sale of terms and in the Securitiesmanner contemplated in the Prospectus, (iii) any the suspension or material limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, American Stock Exchange or the NASDAQ Stock National Market or any setting of minimum prices for trading on such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United StatesSystem, (iv) the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which in your opinion materially and adversely affects, or will materially and adversely affect, the business or operations of the Company or the Subsidiary, (v) the declaration of a general banking moratorium by federal, either federal or New York State authorities or Maryland authorities, (vvi) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your judgment opinion has a material adverse effect on the financial markets in the United States. If on the Closing Date or on an Option Closing Date, as the case may be, any one or more of the Underwriters shall fail or refuse to purchase the Firm Shares or Additional Shares, as the case may be, which it or they have agreed to purchase hereunder on such date and wouldthe aggregate number of Firm Shares or Additional Shares, as the case may be, which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase is not more than one-tenth of the total number of Shares to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, in the judgment proportion which the number of Firm Shares set forth opposite its name in Schedule I bears to the Representativestotal number of Firm Shares which all the non-defaulting Underwriters, make it impracticable or inadvisable as the case may be, have agreed to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decreepurchase, or in such other promulgation proportion as you may specify, to purchase the Firm Shares or Additional Shares, as the case may be, which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase on such date; provided that in no event shall the number of -------- Firm Shares or Additional Shares, as the case may be, which any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made Underwriter has agreed to purchase pursuant to Section 2 hereof be increased pursuant to this Agreement shall remain operative and Section 10 by an amount in full force and effectexcess of one-ninth of such number of Firm Shares or Additional Shares, and will survive delivery as the case may be, without the written consent of and payment for the Securities, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreementsuch Underwriter. If this Agreement on the Closing Date any Underwriter or Underwriters shall be terminated by fail or refuse to purchase Firm Shares and the Underwriters pursuant to clauses (i) or (iii) (aggregate number of Firm Shares, with respect to the Company’s securities) which such default occurs is more than one-tenth of the second paragraph aggregate number of Shares to be purchased on such date by all Underwriters and arrangements satisfactory to you and the applicable Sellers for purchase of such Shares are not made within 48 hours after such default, this Section 11 or because of the failure or refusal Agreement will terminate without liability on the part of any non-defaulting Underwriter and the Company to comply with the terms or to fulfill applicable Sellers. In any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any such case which does not result in termination of this Agreement, either you or the Company Sellers shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement and the Prospectus or any other documents or arrangements may be liable for all expenses effected. If, on an Option Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase Additional Shares and the aggregate number of Additional Shares with respect to which they have agreed such default occurs is more than one-tenth of the aggregate number of Additional Shares to pay pursuant to Section 5(e) hereof. Except as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the Companypurchased on such date, the Underwriters, non-defaulting Underwriters shall have the option to (i) terminate their obligation hereunder to purchase such Additional Shares or (ii) purchase not less than the number of Additional Shares that such non-defaulting Underwriters would have been obligated to purchase on such date in the absence of such default. Any action taken under this paragraph shall not relieve any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided defaulting Underwriter from liability in respect of any default of any such Underwriter under this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement ------------------------------------------- shall become effective upon the execution and delivery of this Agreement by the parties heretoAgreement. This Agreement may be terminated at any time on or prior to the Closing Date by you by written notice to the Company if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is given in the Registration Statement and the Prospectus, any Material Adverse Effect occursadverse change or development involving a prospective adverse change in the condition, whichfinancial or otherwise, of the Company or any of its subsidiaries or the earnings, cash flows, business affairs, or business prospects of the Company or any of its subsidiaries, whether or not arising in the ordinary course of business, which would, in the judgment of the Representativesyour judgment, makes make it impracticable or inadvisable to market the Securities Shares or to enforce contracts for the sale of the SecuritiesShares, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in economic conditions or in the financial markets of the United States or elsewhereelsewhere that, or any other substantial national or international calamity or emergency if the effect of such outbreakin your judgment, escalation, calamity, crisis or emergency is material and adverse and would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to market the Securities Shares or to enforce contracts for the sale of the SecuritiesShares, (iii) any the suspension or material limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, American Stock Exchange or the NASDAQ Stock National Market System or any setting of minimum limitation on prices for trading securities on any such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United StatesNational Market System, (iv) the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which in your judgment materially and adversely affects, or will materially and adversely affect, the business or operations of the Company and its subsidiaries, taken as a whole, (v) the declaration of a general banking moratorium by federal, either federal or New York State authorities or Maryland authorities, (vvi) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your judgment has a material adverse effect on the financial markets in the United States, States and would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to proceed with market the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus Shares or to enforce contracts for the sale of the Securities Shares. If on the Closing Date any one or (vi) more of the enactmentUnderwriters shall fail or refuse to purchase the Firm Shares which it or they have agreed to purchase hereunder on such date and the aggregate number of Firm Shares which such defaulting Underwriter or Underwriters, publicationas the case may be, decreeagreed but failed or refused to purchase is not more than one-tenth of the total number of Shares to be purchased on such date by all Underwriters, or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which wouldeach non-defaulting Underwriter shall be obligated severally, in the judgment proportion which the number of Firm Shares set forth opposite its name in Schedule II and Schedule III bears to the Representativestotal number of Firm Shares which all the non-defaulting Underwriters, as the case may be, have a Material Adverse Effect. The indemnities and contribution provisions and agreed to purchase, or in such other proportion as you may specify, to purchase the other agreementsFirm Shares which such defaulting Underwriter or Underwriters, representations and warranties as the case may be, agreed but failed or refused to purchase on such date; provided that in no event shall the number of the Company, its officers and directors and the Underwriters set forth in or made Firm Shares which any -------- Underwriter has agreed to purchase pursuant to Section 3 hereof be increased pursuant to this Agreement shall remain operative and Section 10 by an amount in full force and effect, and will survive delivery excess of and payment for one-ninth of such number of Firm Shares without the Securities, regardless written consent of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreementsuch Underwriter. If this Agreement on the Closing Date any Underwriter or Underwriters shall be terminated by fail or refuse to purchase Firm Shares and the Underwriters pursuant to clauses (i) or (iii) (aggregate number of Firm Shares with respect to the Company’s securities) which such default occurs is more than one-tenth of the second paragraph aggregate number of Shares to be purchased on such date by all Underwriters, and arrangements satisfactory to you and the Company for purchase of such Shares are not made within 48 hours after such default, this Section 11 or because of the failure or refusal Agreement will terminate without liability on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreementnon-defaulting Underwriter, the Company agrees to reimburse you for all out-of-pocket expenses incurred by youand the Selling Stockholders. Notwithstanding In any such case which does not result in termination of this Agreement, either you or the Company shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement and the Prospectus or any other documents or arrangements may be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereofeffected. Except as otherwise provided, Any action taken under this Agreement has been and is made solely for the benefit paragraph shall not relieve any defaulting Underwriter from liability in respect of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in default of any such Underwriter under this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement shall become effective upon the execution and delivery of this Agreement by the parties heretohereof. This Agreement may be terminated at any time on or prior to the Closing Date by you by notice to the Company Issuers if any of the following has occurred: (i) on or after the Applicable Time, any Material Adverse Effect occurs, which, in the judgment of the Representatives, makes it impracticable or inadvisable to market the Securities or to enforce contracts for sale of the Securities, (ii) any new outbreak or material escalation of hostilities or other national or international or domestic calamity or crisis or material adverse change in the financial markets of the United States or elsewhereStates, or any other substantial national or international calamity or emergency if the effect of such outbreak, escalation, calamity, crisis crisis, material adverse change or emergency would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to market any of the Offered Securities or to enforce contracts for the sale of any of the Offered Securities, in either case on the terms and in the manner contemplated in the Offering Circular, (iiiii) any suspension or limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, Exchange or the NYSE Amex Equities, the NASDAQ Stock Market PORTAL market or any setting of minimum prices for trading on such exchange or marketsmarket, (iii) the suspension of trading of any securities of the Partnership in any exchange or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United Statesover-the-counter market, (iv) any declaration of a general banking moratorium by federal, either federal or New York or Maryland authorities, (v) the taking of any action by any federal, federal or state or local government or agency in respect of its monetary or fiscal affairs that in your judgment has a material adverse effect on the financial markets in the United States, and would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to proceed with the offering, sale or delivery market any of the Offered Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of any of the Offered Securities or (vi) the enactment, publication, decree, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other federal or state governmental authority which wouldwhich, in the judgment of the Representativesyour judgment, would have a Material Adverse EffectEffect on the Issuers and the Operating Partnerships, taken as a whole, or the General Partners. The indemnities and contribution provisions and the other agreements, representations and warranties of the CompanyIssuers, its the Operating Partnerships and the General Partners, their respective officers and directors and of the Underwriters Purchasers set forth in or made pursuant to this Agreement shall remain operative and in full force and effect, and will survive delivery of and payment for the Offered Securities, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters Purchasers or by or on behalf of the CompanyIssuers, its the Operating Partnerships and the General Partners, the officers or directors of either of the Issuers, the Operating Partnerships or any the General Partners or controlling person thereofof any of the Issuers, the Operating Partnerships or the General Partners, (ii) acceptance of the Offered Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securities) of the second paragraph of this Section 11 or because of the failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any termination of this Agreement, the Company shall be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereof. Except as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the CompanyIssuers, the UnderwritersOperating Partnerships, the General Partners, the Purchasers, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “term "successors and assigns” " shall not include a purchaser of any of the Offered Securities from any of the Underwriters Purchasers merely because of such purchase.
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement shall become effective upon the execution and delivery of this Agreement by the parties heretoAgreement. This Agreement may be terminated at any time on or prior to the Closing Date by you the Representatives by written notice to the Company if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is given in the Registration Statement and the Prospectus and since the Time of Sale, any Material Adverse Effect occurs, which, in the judgment of the Representatives, makes it impracticable or inadvisable to market the Securities or to enforce contracts for sale of the Securities, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change or development involving a prospective material adverse change (including, without limitation, the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority) in the condition, financial markets or otherwise, of the United States Company and its subsidiaries taken as a whole or elsewherethe earnings, affairs, or any other substantial national business prospects of the Company and its subsidiaries taken as a whole, whether or international calamity or emergency if not arising in the effect ordinary course of such outbreakbusiness, escalation, calamity, crisis or emergency which would, in the judgment of the Representatives, make it impracticable or inadvisable to market the Securities Shares on the terms and in the manner contemplated in the Prospectus, (ii) any outbreak or to enforce contracts for escalation of hostilities or other national or international calamity or crisis (including, without limitation, an act of terrorism) or change in economic conditions or in the sale financial markets of the SecuritiesUnited States or elsewhere that, in the judgment of the Representatives, is material and adverse and would, in the judgment of the Representatives, make it impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus, (iii) any the suspension or material limitation of trading in the Company’s securities generally, or in trading generally in the securities of the Company listed, on the New York Stock Exchange, the NYSE Amex Equities, the MKT or The NASDAQ Stock Market or Market, limitation on prices on any setting of minimum prices for trading on such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United Statesexchange, (iv) any declaration of a general banking moratorium material disruption in securities settlement that makes it impracticable to deliver the Shares in the manner contemplated by federalthe Prospectus, New York or Maryland authorities, (v) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your judgment the opinion of the Representatives has a material adverse effect on the financial markets in the United States. If on the Closing Date any one or more of the Underwriters shall fail or refuse to purchase and pay for any of the Shares which it or they have agreed to purchase hereunder on such date and the number of Shares which such defaulting Underwriter or Underwriters, and wouldas the case may be, agreed but failed or refused to purchase is not more than one-tenth of the total number of Shares to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, in the judgment proportion which the number of Shares set forth opposite its name in Schedule I bears to the Representativestotal number of Shares which all the non-defaulting Underwriters, make it impracticable or inadvisable as the case may be, have agreed to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decreepurchase, or in such other promulgation proportion as the Representatives may specify, to purchase the Shares which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase on such date; provided that in no event shall the number of Shares which any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made Underwriter has agreed to purchase pursuant to Section 2 hereof be increased pursuant to this Agreement shall remain operative and Section 10 by an amount in full force and effect, and will survive delivery excess of and payment for the Securities, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any one-ninth of the Underwriters or by or on behalf number of Shares without the Company, its officers or directors or any controlling person thereof, (ii) acceptance written consent of the Securities and payment for them hereunder and (iii) termination of this Agreementsuch Underwriter. If this Agreement on the Closing Date any Underwriter or Underwriters shall be terminated by fail or refuse to purchase Shares and the Underwriters pursuant to clauses (i) or (iii) (aggregate number of Shares with respect to the Company’s securities) which such default occurs is more than one-tenth of the second paragraph aggregate number of Shares to be purchased on such date by all Underwriters and arrangements satisfactory to the Representatives and the Company for purchase of such Shares are not made within 48 hours after such default, this Section 11 or because of the failure or refusal Agreement will terminate without liability on the part of any non-defaulting Underwriter and the Company to comply with the terms or to fulfill Company. In any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any such case which does not result in termination of this Agreement, either the Representatives or the Company shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement and the Prospectus or any other documents or arrangements may be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereofeffected. Except as otherwise provided, Any action taken under this Agreement has been and is made solely for the benefit paragraph shall not relieve any defaulting Underwriter from liability in respect of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in default of any such Underwriter under this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Samples: Underwriting Agreement (Capital One Financial Corp)
Effective Date of Agreement and Termination. This Agreement shall become effective upon the execution and delivery of this Agreement by the parties hereto. This Agreement may be terminated at any time on or prior to the First Closing Date or the applicable Option Closing Date by you the Representative by written notice to the Company if any of the following has occurred: (i) the Company shall have failed, refused or been unable to perform in any material respect any agreement on or after the Applicable Time, any Material Adverse Effect occurs, which, in the judgment of the Representatives, makes it impracticable or inadvisable its part to market the Securities or to enforce contracts for sale of the Securities, be performed hereunder; (ii) any new other condition to the obligations of the Underwriters hereunder as provided in Section 9 of this Agreement is not fulfilled when and as required unless waived by the Underwriters in accordance with the provisions of Section 9; (iii) any outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in the financial markets hostilities, any declaration of war by the United States or elsewhereStates, or any other substantial national or international calamity calamity, emergency or emergency if crisis (including acts of terrorism), any material adverse change in economic conditions in, or the financial markets of, the United States or any change in national or international political, financial or economic conditions, in each case, the effect of such outbreak, escalation, calamity, crisis or emergency wouldwhich could make it, in the judgment of the RepresentativesRepresentative’s sole judgment, make it impracticable or inadvisable to market or proceed with the Securities offering or delivery of the Shares on the terms and in the manner contemplated in the Registration Statement, the Time of Sale Prospectus and the Prospectus or to enforce contracts for the sale of any of the Securities, Shares; (iiiiv) any the suspension or material limitation of trading in the Company’s securities or in trading generally in securities other instruments on the New York Stock ExchangeExchange or the NASDAQ Global Market or limitation on prices for securities or other instruments on the New York Stock Exchange or the NASDAQ Global Market; (v) the suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (vi) the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which in the Representative’s reasonable opinion materially and adversely affects, or will materially and adversely affect, the NYSE Amex Equitiesproperties, business, prospects, operations, earnings, assets, liabilities or condition (financial or otherwise) of the NASDAQ Stock Market or any setting of minimum prices for trading on such exchange or marketsCompany and the Subsidiaries, or taken as a material disruption has occurred in commercial banking or securities settlement or clearance services in whole; (vi) the United States, (iv) any declaration of a general banking moratorium by federal, either federal or New York State authorities; or Maryland authorities, (vvii) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your judgment the Representative’s reasonable opinion has a material adverse effect on the financial markets in the United States, and would, in the judgment of the Representatives, make it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decree, or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made pursuant to this Agreement shall remain operative and in full force and effect, and will survive delivery of and payment for the Securities, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securities) of the second paragraph of this Section 11 or because of the failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any termination of this Agreement, the Company shall be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereof. Except as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement shall become effective upon the later of (i) execution and delivery of this Agreement by the parties hereto. This Agreement may be terminated at any time on or prior to the Closing Date by you by notice to the Company if any of the following has occurred: (i) on or after the Applicable Time, any Material Adverse Effect occurs, which, in the judgment of the Representatives, makes it impracticable or inadvisable to market the Securities or to enforce contracts for sale of the Securities, and (ii) any new outbreak when notification of the effectiveness of the Registration Statement has been released by the Commission. economic conditions or material escalation of hostilities or other national or international calamity or crisis or material adverse change in the financial markets of the United States or elsewhereelsewhere that, or any other substantial national or international calamity or emergency if in the effect judgment of such outbreakthe Representatives, escalation, calamity, crisis or emergency is material and adverse and would, in the judgment of the Representatives, make it impracticable or inadvisable to market the Securities or to enforce contracts for Shares on the sale of terms and in the Securitiesmanner contemplated in the Prospectus, (iii) any the suspension or material limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, American Stock Exchange or the NASDAQ Stock National Market System or any setting of minimum limitation on prices for trading securities on any such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United StatesNational Market System, (iv) the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which in the opinion of the Representatives materially and adversely affects, or will materially and adversely affect, the business or operations of the Company or any subsidiary, (v) the declaration of a general banking moratorium by federal, either federal or New York State authorities or Maryland authorities, (vvi) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your judgment the opinion of the Representatives has a material adverse effect on the financial markets in the United States. as the case may be, any Underwriter or Underwriters shall fail or refuse to purchase Firm Shares, or Additional Shares, as the case may be, and wouldthe aggregate number of Firm Shares or Additional Shares, in as the judgment of the Representativescase may be, make it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decree, or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made pursuant to this Agreement shall remain operative and in full force and effect, and will survive delivery of and payment for the Securities, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securities) which such default occurs is more than one-tenth of the second paragraph aggregate number of Shares to be purchased on such date by all Underwriters and arrangements satisfactory to the Representatives and the applicable Sellers for purchase of such Shares are not made within 48 hours after such default, this Section 11 or because of the failure or refusal Agreement will terminate without liability on the part of any non-defaulting Underwriter and the Company to comply with the terms or to fulfill applicable Sellers. In any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any such case which does not result in termination of this Agreement, either the Company Representatives or the Sellers shall have the right to postpone the Closing Date or the applicable Option Closing Date, as the case may be, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement and the Prospectus or any other documents or arrangements may be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereofeffected. Except as otherwise provided, Any action taken under this Agreement has been and is made solely for the benefit paragraph shall not relieve any defaulting Underwriter from liability in respect of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in default of any such Underwriter under this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Samples: Underwriting Agreement (Dominicks Supermarkets Inc)
Effective Date of Agreement and Termination. This Agreement shall become effective upon the later of (i) execution and delivery of this Agreement and (ii) when notification of the effectiveness of the Registration Statement has been released by the parties heretoCommission. This Agreement may be terminated at any time on or prior to the Closing Date by you by written notice to the Company if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is given in the Registration Statement and the Prospectus, any Material Adverse Effect occursadverse change or development involving a prospective adverse change in the condition, whichfinancial or otherwise, of the Company or any of its subsidiaries or the earnings, affairs, or business prospects of the Company or any of its subsidiaries, whether or not arising in the ordinary course of business, which would, in the judgment of the Representativesyour judgment, makes make it impracticable or inadvisable to market the Securities or to enforce contracts for sale of Shares on the Securities, terms and in the manner contemplated in the Prospectus; (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in economic conditions or in the financial markets of the United States or elsewhereelsewhere that, or any other substantial national or international calamity or emergency if the effect of such outbreakin your judgment, escalation, calamity, crisis or emergency is material and adverse and would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to market the Securities or to enforce contracts for Shares on the sale of terms and in the Securities, manner contemplated in the Prospectus; (iii) any the suspension or material limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, American Stock Exchange or the NASDAQ Stock Nasdaq National Market or any setting of minimum limitation on prices for trading securities on any such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States, Nasdaq National Market; (iv) the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which in your opinion materially and adversely affects, or will materially and adversely affect, the business or operations of the Company or any Subsidiary; (v) the declaration of a general banking moratorium by federal, either federal or New York State authorities; or Maryland authorities, (vvi) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your judgment opinion has a material adverse effect on the financial markets in the United States. If on the Closing Date or on an Option Closing Date, as the case may be, any one or more of the Underwriters shall fail or refuse to purchase the Firm Shares or Additional Shares, as the case may be, which it or they have agreed to purchase hereunder on such date and wouldthe aggregate number of Firm Shares or Additional Shares, as the case may be, which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase is not more than one-tenth of the total number of Shares to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, in the judgment proportion which the number of Firm Shares set forth opposite its name in Schedule I bears to the Representativestotal number of Firm Shares which all the non-defaulting Underwriters, make it impracticable or inadvisable as the case may be, have agreed to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decreepurchase, or in such other promulgation proportion as you may specify, to purchase the Firm Shares or Additional Shares, as the case may be, which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase on such date; provided that in no event shall the number of Firm Shares or Additional Shares, as the case may be, which any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made Underwriter has agreed to purchase pursuant to Section 2 hereof be increased pursuant to this Agreement Section 9 by an amount in excess of one-ninth of such number of Firm Shares or Additional Shares, as the case may be, without the written consent of such Underwriter. If on the Closing Date or on an Option Closing Date, as the case may be, any Underwriter or Underwriters shall remain operative and in full force and effectfail or refuse to purchase Firm Shares, or Additional Shares, as the case may be, and will survive delivery the aggregate number of and payment for Firm Shares or Additional Shares, as the Securitiescase may be, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securities) which such default occurs is more than one-tenth of the second paragraph aggregate number of Shares to be purchased on such date by all Underwriters and arrangements satisfactory to you and the Company for purchase of such Shares are not made within 48 hours after such default, this Section 11 or because of the failure or refusal Agreement will terminate without liability on the part of any non-defaulting Underwriter and the Company to comply with the terms or to fulfill Company. In any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any such case which does not result in termination of this Agreement, either you or the Company shall have the right to postpone the Closing Date or the applicable Option Closing Date, as the case may be, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement and the Prospectus or any other documents or arrangements may be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereofeffected. Except as otherwise provided, Any action taken under this Agreement has been and is made solely for the benefit paragraph shall not relieve any defaulting Underwriter from liability in respect of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in default of any such Underwriter under this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
Samples: Underwriting Agreement (General Cigar Holdings Inc)
Effective Date of Agreement and Termination. This Agreement shall become effective upon the later of (i) execution and delivery of this Agreement by Agreement, (ii) unless the parties hereto. Company intends to rely on Rule 430A of the Act, the effectiveness of the Registration Statement, and (iii) if the Company intends to rely on Rule 430A of the Act, the earlier of the effectiveness of a post-effective This Agreement may be terminated at any time on or prior to the Closing Date by you by written notice to the Company if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is given in the Registration Statement and the Prospectus, any Material Adverse Effect occursmaterial adverse change or development involving a prospective adverse change in the condition, whichfinancial or otherwise, of the Company or any of its subsidiaries or the earnings, affairs, or business prospects of the Company or any of its subsidiaries, whether or not arising in the ordinary course of business, which would, in the judgment of the Representativesyour judgment, makes make it impracticable or inadvisable to market the Securities or to enforce contracts for sale of Shares on the Securitiesterms and in the manner contemplated in the Prospectus, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in economic conditions or in the financial markets of the United States or elsewhereelsewhere that, or any other substantial national or international calamity or emergency if the effect of such outbreakin your judgment, escalation, calamity, crisis or emergency is material and adverse and would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable to market the Securities or to enforce contracts for Shares on the sale of terms and in the Securitiesmanner contemplated in the Prospectus, (iii) any the suspension or material limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, American Stock Exchange or the NASDAQ Stock Nasdaq National Market or any setting of minimum limitation on prices for trading securities on any such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United StatesNasdaq National Market, (iv) any declaration of a general banking moratorium by federal, New York or Maryland authorities, (v) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that in your judgment has a material adverse effect on the financial markets in the United States, and would, in the judgment of the Representatives, make it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decree, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which wouldin your opinion materially and adversely affects, or will materially and adversely affect, the business or operations of the Company or any subsidiary, (v) the declaration of a banking moratorium by either federal or New York State authorities or (vi) the taking of any action by any Federal, state or local government or agency in respect of its monetary or fiscal affairs which in your opinion has a material adverse effect on the financial markets in the judgment of United States. If on the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made pursuant to this Agreement shall remain operative and in full force and effect, and will survive delivery of and payment for the Securities, regardless of (i) any investigation, or statement as to the results thereof, made by Closing Date or on behalf of an Option Closing Date, as the case may be, any one or more of the Underwriters shall fail or by refuse to purchase the Firm Shares or on behalf of Additional Shares, as the Companycase may be, its officers which it or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securities) of the second paragraph of this Section 11 or because of the failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any termination of this Agreement, the Company shall be liable for all expenses which they have agreed to pay purchase hereunder on such date and the aggregate number of Firm Shares or Additional Shares, as the case may be, which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase is not more than one-tenth of the total number of Shares to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, in the proportion which the number of Firm Shares set forth opposite its name in Schedule I bears to the total number of Firm Shares which all the non-defaulting Underwriters, as the case may be, have agreed to purchase, or in such other proportion as you may specify, to purchase the Firm Shares or Additional Shares, as the case may be, which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase on such date; provided that in no event shall the number of Firm Shares or Additional Shares, as the case may be, which any Underwriter has agreed to purchase pursuant to Section 5(e) hereof2 hereof be increased pursuant to this Section 9 by an amount in excess of one-ninth of such number of Firm Shares or Additional Shares, as the case may be, without the written consent of such Underwriter. Except If on the Closing Date or on an Option Closing Date, as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the Company, the Underwriterscase may be, any Indemnified Person referred Underwriter or Underwriters shall fail or refuse to herein and their respective successors and assignspurchase Firm Shares, all or Additional Shares, as and to the extent provided in this Agreementcase may be, and no other person shall acquire the aggregate number of Firm Shares or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of Additional Shares, as the Securities from any of the Underwriters merely because of such purchase.case may be, with respect to which
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement shall become effective upon the execution and delivery of this Agreement by the parties heretoAgreement. This Agreement may be terminated at any time on or prior to the Closing Date by you by written notice to the Company if any of the following has occurred: (i) on or after since the Applicable Timerespective dates as of which information is given in the Registration Statement and the Prospectus, any there has been a Material Adverse Effect occurs, which, in the judgment of the Representatives, makes it impracticable or inadvisable to market the Securities or to enforce contracts for sale of the SecuritiesEffect, (ii) any new outbreak or material escalation of hostilities or other national or international calamity or crisis or material adverse change in economic conditions or in the financial markets of the United States or elsewhereelsewhere that, or any other substantial national or international calamity or emergency if the effect of such outbreakin your judgment, escalation, calamity, crisis or emergency is material and adverse and would, in the judgment of the Representativesyour judgment, make it impracticable or inadvisable (x) to market commence or continue the Securities offering of the shares to the public or (y) to enforce contracts for the sale of the Securitiesshares, (iii) any the suspension or material limitation of trading in the Company’s securities or in trading generally in securities on the New York Stock Exchange, the NYSE Amex Equities, the NASDAQ Stock Market or any setting of minimum material limitation on prices for trading securities on either of such exchange or markets, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United Statesexchanges, (iv) (a) the downgrading of any of the debt securities of the Company or any of its subsidiaries by any "nationally recognized statistical rating organization" or the announcement by any such organization of an initial rating with respect to any such securities that is below the ratings of other such organizations in effect for such securities on the date hereof, or (b) the public announcement by any such organization that it has under surveillance or review, with possible negative implications, its rating of any of such securities, (v) the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which in your opinion would result in a Material Adverse Effect, (vi) the declaration of a general banking moratorium by federal, either federal or New York State authorities or Maryland authorities, (vvii) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs that which in your judgment opinion has a material adverse effect on the financial markets in the United States, and would, in the judgment of the Representatives, make it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Prospectus or to enforce contracts for the sale of the Securities or (vi) the enactment, publication, decree, or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which would, in the judgment of the Representatives, have a Material Adverse Effect. The indemnities and contribution provisions and the other agreements, representations and warranties of the Company, its officers and directors and the Underwriters set forth in or made pursuant to this Agreement shall remain operative and in full force and effect, and will survive delivery of and payment for the Securities, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of any of the Underwriters or by or on behalf of the Company, its officers or directors or any controlling person thereof, (ii) acceptance of the Securities and payment for them hereunder and (iii) termination of this Agreement. If this Agreement shall be terminated by the Underwriters pursuant to clauses (i) or (iii) (with respect to the Company’s securities) of the second paragraph of this Section 11 or because of the failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, the Company agrees to reimburse you for all out-of-pocket expenses incurred by you. Notwithstanding any termination of this Agreement, the Company shall be liable for all expenses which they have agreed to pay pursuant to Section 5(e) hereof. Except as otherwise provided, this Agreement has been and is made solely for the benefit of and shall be binding upon the Company, the Underwriters, any Indemnified Person referred to herein and their respective successors and assigns, all as and to the extent provided in this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The terms “successors and assigns” shall not include a purchaser of any of the Securities from any of the Underwriters merely because of such purchase.
Appears in 1 contract
