Effective Date of Agreement and Termination. This Agreement shall become effective upon the later of (i) execution of this Agreement, (ii) when notification of the effectiveness of the Registration Statement has been released by the Commission 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 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) 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 to market the Securities on the terms and in the manner contemplated in the Prospectus, or (ii) the suspension or material limitation of trading in securities on the New York Stock Exchange, the American Stock Exchange or the Nasdaq National Market or limitation on prices for securities on any such exchange or the Nasdaq National Market or (iii) the declaration of a banking moratorium by either federal or New York State authorities. 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 number 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 number of Securities to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, in the proportion which the number of Securities set forth opposite its name in Annex I bears to the total number of Securities 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 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 Securities which any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased pursuant to this Section 9 by an amount in excess of one-ninth of such number of Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs is more than one-tenth of the 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 Agreement will terminate without liability on the part of any non-defaulting Underwriter or the Company. 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 effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of any such Underwriter under this Agreement.
Appears in 2 contracts
Samples: Underwriting Agreement (Amphenol Corp /De/), Underwriting Agreement (NXS I LLC)
Effective Date of Agreement and Termination. This (a) If the Registration Statement has not been declared effective prior to the date of this Agreement, this Agreement shall become effective upon the later of (i) execution of this Agreementat such time, (ii) when after notification of the effectiveness of the Registration Statement has been released by the Commission Commission, as the Representatives and the Company shall agree upon the public offering price and the purchase price of the Shares. If the public offering price and the purchase price of the Shares shall not have been determined prior to 5:00 p.m., New York time, on the fifth full business day after the Registration Statement has become effective, this Agreement shall thereupon terminate without liability on the part of the Company to the Underwriters (iiiexcept as provided in Section 4 or Section 7 of this Agreement) if a post-or the Underwriters to the Company (except as set forth in Section 7 of this Agreement). By giving notice before the time this Agreement becomes effective, the Representatives may prevent this Agreement from becoming effective amendment without liability of any party to the other party, except that the Company shall remain obligated to pay costs and expenses to the extent provided in Section 4 and Section 7 of this Agreement. If the Registration Statement has been filed (including any post-declared effective amendment required prior 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)date of this Agreement, the effectiveness of such post-effective amendment or new or additional registration statement. Until this Agreement becomes shall become effective as aforesaid, it upon execution and delivery by the Representatives and the Company.
(b) This Agreement may be terminated by the Representatives in their absolute discretion by giving written notice to the Company by notifying the Underwriters or by the Underwriters by notifying the Company. This Agreement may be terminated at any time after it becomes effective and on or prior to the Closing Date by you by written notice or, with respect to the Company purchase of the Option Shares, on or prior to any later date on which the Option Shares are to be purchased, as the case may be, if prior to such time any of the following has occurredoccurred or, in the Representatives' opinion, is likely to occur: (i) after the respective dates as of which information is given in the Registration Statement and the Prospectus, any material adverse change or development involving a prospective adverse change in or affecting particularly the business, properties, condition (financial or otherwise), results of operations or prospects of the Company and its direct and indirect subsidiaries, taken as a whole, whether or not arising in the ordinary course of business, occurs which would, in the Representatives' sole judgment, make the offering or the delivery of the Shares impracticable or inadvisable; or (ii) if there shall have been the engagement in hostilities or an escalation of major hostilities by the United States or the declaration of war or a national emergency by the United States on or after the date hereof, or any outbreak or escalation of hostilities or other national or international calamity or crisis or change in economic or political conditions, if the effect of such outbreak, calamity, crisis or change in economic or political conditions or in on the financial markets of the United States or elsewhere that, in your judgment, is material and adverse and would, in your the Representatives' sole judgment, make it the offering or delivery of the Shares impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus, or inadvisable; or (iiiii) the if there shall have been suspension or material limitation of trading in securities generally or a material adverse decline in value of securities generally on the New York Stock Exchange, the American Stock Exchange or Exchange, the Nasdaq National Market Market, or limitation limitations on prices (other than limitations on hours or numbers of days of trading) for securities on any either such exchange or the Nasdaq National Market system; or (iiiiv) if there shall have 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 the Representatives' sole judgment has or may have a Consolidated Material Adverse Effect; or (v) if there shall have been the declaration of a banking moratorium by either federal federal, New York, California or New York State Texas state authorities; or (vi) if there shall have been the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs which in the Representatives' sole judgment has a material adverse effect on the securities markets in the United States; or (vii) existing international monetary conditions shall have undergone a material change which, in your sole judgment, makes the offering or delivery of the Shares impracticable or inadvisable. 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 number 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 number of Securities to be purchased on such date by all Underwriters, each non-defaulting Underwriter this Agreement shall be obligated severally, in the proportion which the number of Securities set forth opposite its name in Annex I bears to the total number of Securities 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 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 Securities which any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased terminated pursuant to this Section 9 by an amount in excess of one-ninth of such number of Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters 8, there shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs is more than one-tenth be no liability of the aggregate number of Securities Company to be purchased on such date by all the Underwriters (except pursuant to Section 4 and arrangements satisfactory to you and the Company for purchase of such Securities are not made within 48 hours after such default, this Agreement will terminate without liability on the part of any non-defaulting Underwriter or the Company. In any such case which does not result in termination Section 7 of this Agreement, either you or ) and no liability of the Underwriters to the Company shall have (except to the right to postpone the Closing Date, but extent provided 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. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect Section 7 of any default of any such Underwriter under this Agreement).
Appears in 2 contracts
Samples: Underwriting Agreement (U S Liquids Inc), Underwriting Agreement (U S Liquids Inc)
Effective Date of Agreement and Termination. This (a) If the Registration Statement has not been declared effective prior to the date of this Agreement, this Agreement shall become effective upon the later of (i) execution of this Agreementat such time, (ii) when after notification of the effectiveness of the Registration Statement has been released by the Commission Commission, as the Representatives and the Company shall agree upon the public offering price and other terms and the purchase price of the Securities. If the public offering price and other terms and the purchase price of the Securities shall not have been determined prior to 5:00 p.m., New York time, on the third full business day after the Registration Statement has become effective, this Agreement shall thereupon terminate without liability on the part of the Company to the Underwriters (iii) if a post-except as provided in Section 6 or Section 9 of this Agreement). By giving notice before the time this Agreement becomes effective, the Representatives, as representative of the several Underwriters, may prevent this Agreement from becoming effective amendment without liability of any party to the other party, except that the Company shall remain obligated to pay costs and expenses to the extent provided in Section 6 and Section 9 of this Agreement. If the Registration Statement has been filed (including any post-declared effective amendment required prior 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)date of this Agreement, this Agreement shall become effective upon execution and delivery by the Representatives, the effectiveness of such post-effective amendment or new or additional registration statement. Until this Company and the Selling Shareholders.
(b) This Agreement becomes effective as aforesaid, it may be terminated by the Representatives by giving written notice to the Company by notifying the Underwriters or by the Underwriters by notifying the Company. This Agreement may be terminated at any time after it becomes effective and on or prior to the Closing Date by you by written notice or, with respect to the Company purchase of the Option Shares, on or prior to any later date on which the Option Shares are to be purchased, as the case may be, if prior to such time any of the following has occurredoccurred or, in the Representatives' opinion, is likely to occur: (i) any outbreak or escalation after the respective dates as of hostilities or other national or international calamity or crisis or change in economic conditions or which information is given in the financial markets of Registration Statement and the United States Prospectus, any material change or elsewhere that, in your judgment, is material development that has had or could reasonably be expected to have a Material Adverse Effect and adverse and which would, in your the Representatives' sole judgment, make it impracticable to market the offering or the delivery of the Securities on the terms and in the manner contemplated in the Prospectus, impracticable or inadvisable; or (ii) the suspension or material limitation of if trading in securities of the Company has been suspended by the Commission or if trading generally on the New York Stock Exchange, the American Stock Exchange Exchange, NNM or the Nasdaq National Market over-the-counter market has been suspended or limitation on minimum or maximum prices for securities on any such exchange or the Nasdaq National Market or (iii) the declaration of a banking moratorium by either federal or New York State authorities. 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 number 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 number of Securities to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, in the proportion which the number of Securities set forth opposite its name in Annex I bears to the total number of Securities 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 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 Securities which any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased pursuant to this Section 9 by an amount in excess of one-ninth of such number of Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs is more than one-tenth of the 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 Agreement will terminate without liability on the part of any non-defaulting Underwriter or the Company. 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 effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of any such Underwriter under this Agreement.trading have
Appears in 2 contracts
Samples: Underwriting Agreement (Zindart LTD), Underwriting Agreement (Zindart LTD)
Effective Date of Agreement and Termination. (a) This Agreement shall become effective upon the later of immediately as to Sections 6 and 8 and, as to all other provisions, (i) if at the time of execution of this AgreementAgreement the Registration Statement has not become effective, (ii) when notification of at 9:30 a.m. New York, New York time on the first full business day following the effectiveness of the Registration Statement has been released by the Commission and Statement, or (iiiii) if a post-effective amendment to at the time of execution of this Agreement the Registration Statement has been filed (including declared effective, at 9:30 a.m. New York, New York time on the first full business day following the date of execution of this Agreement; but this Agreement shall nevertheless become effective at such earlier time after the Registration Statement becomes effective as you may determine on and by notice to the Company and the Selling Stockholders or by release of any post-effective amendment required of the Shares for sale 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)public. For the purposes of this Section 10, the effectiveness Shares shall be deemed to have been so released upon the release of such post-effective amendment publication of any newspaper advertisement relating to the Shares or new upon the release by you of telegrams (i) advising the Underwriters that the Shares are released for public offering, or additional registration statement(ii) offering the Shares for sale to securities dealers, whichever may occur first. Until By giving notice before the time this Agreement becomes effective effective, you, as aforesaidrepresentative of the several Underwriters, it or the Company, may be terminated by 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 6 hereof and except that the provisions of Section 8 shall remain in effect.
(b) You may terminate this Agreement, by notifying notice to the Underwriters or by Company and the Underwriters by notifying the Company. This Agreement may be terminated Selling Stockholders, at any time after it becomes effective and at or prior to the Closing Date by you by written notice to the Company if any of the following has occurred: Time (i) in accordance with the penultimate paragraph of Section 7 of this Agreement, or (ii) if there has been since the respective dates as of which information is given in the Registration Statement, any 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 escalation of hostilities or other national or international calamity or crisis or change in economic or political conditions or in the effect of which on the financial markets of the United States or elsewhere thatis such as to make it, in your judgment, is material and adverse and would, in your judgment, make it impracticable to market the Securities on Shares or enforce contracts for the terms and in sale of the manner contemplated in the ProspectusShares, or (iiiv) the suspension or material limitation of if trading in any securities of the Company has been suspended by the Commission or by the Nasdaq Stock Market or if trading generally on the New York Stock Exchange, the American Stock Exchange or in the Nasdaq National Market over-the-counter market has been suspended, or limitation limitations on prices for trading (other than limitations on hours or numbers of days of trading) have been fixed, or maximum ranges for prices for securities on any have been required, by such exchange or the Nasdaq National Market NASD or by order of the Commission or any other governmental authority, or (iiiv) the declaration of if a banking moratorium has been declared by either federal or New York State or Louisiana authorities. If , 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 which in your reasonable opinion has a material adverse effect 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 number 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 number of Securities to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, securities markets in the proportion which the number of Securities set forth opposite its name in Annex I bears to the total number of Securities 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 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 Securities which any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased United States.
(c) If this Agreement is terminated pursuant to this Section 9 by an amount in excess of one-ninth of 10, such number of Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters termination shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs is more than one-tenth of the 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 Agreement will terminate without liability on the part of any non-defaulting Underwriter or party to any other party, except to the Companyextent provided in Section 6. In Notwithstanding any such case which does not result termination, the provisions of Section 8 shall remain 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 effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of any such Underwriter under this Agreementeffect.
Appears in 1 contract
Samples: Underwriting Agreement (Superior Energy Services Inc)
Effective Date of Agreement and Termination. (a) This Agreement shall become effective upon the later of (i) if at the time of execution of this Agreement the Registration Statement has not become effective, at 10:00 A.M. eastern time on the first full business day following the effectiveness of the Registration Statement, or (ii) if at the time of execution of this Agreement, (ii) when notification of the effectiveness of the Registration Statement has been released by declared effective, at 10:00 A.M. eastern time on the Commission and (iii) if a post-first full business day following the date of execution of this Agreement; but this Agreement shall nevertheless become effective amendment to at such earlier time after the Registration Statement has been filed (including becomes effective as you may determine on and by notice to the Company or by release of any post-effective amendment required of the Shares for sale 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)public. For the purposes of this Section 10, the effectiveness Shares shall be deemed to have been so released upon the release for publication of such post-effective amendment any newspaper advertisement relating to the Shares or new upon the release by you of telegrams or additional registration statementfacsimile messages (i) advising the Underwriters that the Shares are released for public offering, or (ii) offering the Shares for sale to securities dealers, whichever may occur first. Until By giving notice before the time this Agreement becomes effective effective, you, as aforesaidthe Representatives of the several Underwriters, it or the Company, may be terminated by 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 5(i) hereof.
(b) You may terminate this Agreement by notifying notice to the Underwriters or by Company and the Underwriters by notifying the Company. This Agreement may be terminated Selling Shareholders at any time after it becomes effective and at or prior to the Closing Date by you by written notice to the Company if any of the following has occurred: (i) any outbreak or escalation in accordance with the last paragraph of hostilities or other national or international calamity or crisis or change in economic conditions or in the financial markets Section 6 of the United States or elsewhere that, in your judgment, is material and adverse and would, in your judgment, make it impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus, this Agreement; or (ii) if there has been, since the suspension or material limitation respective dates as of trading in securities on the New York Stock Exchange, the American Stock Exchange or the Nasdaq National Market or limitation on prices for securities on any such exchange or the Nasdaq National Market or (iii) the declaration of a banking moratorium by either federal or New York State authorities. 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 number of Securities, which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase information 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 proportion which the number of Securities set forth opposite its name in Annex I bears to the total number of Securities 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 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 Securities which any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased pursuant to this Section 9 by an amount in excess of one-ninth of such number of Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs is more than one-tenth of the 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 Agreement will terminate without liability on the part of any non-defaulting Underwriter or the Company. 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, given in the Registration Statement and the Prospectus Statement, any material adverse change, or any other documents development which might reasonably be viewed as resulting in a material adverse change in or arrangements may be effected. Any action taken under this paragraph shall affecting the assets, properties, results of operation, financial condition or business prospects of the Company, whether or not relieve any defaulting Underwriter from liability arising in respect the ordinary course of any default of any such Underwriter under this Agreement.business;
Appears in 1 contract
Samples: Underwriting Agreement (Keystone Automotive Industries Inc)
Effective Date of Agreement and Termination. (a) This Agreement shall become effective upon the later of immediately as to Sections 6 and 9 and, as to all other provisions, (i) if at the time of execution of this Agreement the Registration Statement has not become effective, at 10:00 A.M. eastern time on the first full business day following the effectiveness of the Registration Statement, or (ii) if at the time of execution of this Agreement, (ii) when notification of the effectiveness of the Registration Statement has been released by declared effective, at 10:00 A.M. eastern time on the Commission and (iii) if a post-first full business day following the date of execution of this Agreement; but this Agreement shall nevertheless become effective amendment to at such earlier time after the Registration Statement has been filed (including becomes effective as you may determine on and by notice to the Company or by release of any post-effective amendment required of the Shares for sale 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)public. For the purposes of this Section 11, the effectiveness Shares shall be deemed to have been so released upon the release for publication of such post-effective amendment any newspaper advertisement relating to the Shares or new upon the release by you of telegrams or additional registration statementfacsimile messages (i) advising the Underwriters that the Shares are released for public offering, or (ii) offering the Shares for sale to securities dealers, whichever may occur first. Until By giving notice before the time this Agreement becomes effective effective, you, as aforesaidthe Representative of the several Underwriters, it or the Company, may be terminated by 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 6 hereof.
(b) You may terminate this Agreement by notifying notice to the Underwriters or by Company and the Underwriters by notifying the Company. This Agreement may be terminated Selling Stockholders at any time after it becomes effective and at or prior to the Closing Date by you by written notice to Time in accordance with the Company if any last paragraph of the following has occurred: Section 7 of this Agreement:
(i) if there has been, since the respective dates as of which information is given in the Registration Statement, any development which would have a Material Adverse Effect.
(ii) if there has occurred or accelerated any outbreak or escalation of hostilities or other national or international calamity or crisis or change in economic or political conditions or in the effect of which on the financial markets of the United States or elsewhere thatis such as to make it, in your judgment, is material and adverse and would, in your judgment, make it impracticable to market the Securities on Shares or enforce contracts for the terms and sale of the Shares;
(iii) if trading in any securities of the manner contemplated in Company has been suspended by the ProspectusCommission or by the NASD or NSM, or (ii) the suspension or material limitation of if trading in securities generally on the New York Stock Exchange, the American Stock Exchange or in the Nasdaq National Market over-the-counter market has been suspended, or limitation limitations on prices for trading (other than limitations on hours or numbers of days of trading) have been fixed, or maximum ranges for prices for securities on any have been required, by such exchange or the Nasdaq National Market NASD or by order of the Commission or any other governmental authority;
(iiiiv) the declaration of if a banking moratorium has been declared by either federal or New York State or Tennessee authorities. If ;
(v) 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 would have a Material Adverse Effect; or
(vi) any action has been taken by any federal, state or local government or agency in respect of its monetary or fiscal affairs which in your reasonable opinion has a material adverse effect 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 number 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 number of Securities to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, securities markets in the proportion which the number of Securities set forth opposite its name in Annex I bears to the total number of Securities 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 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 Securities which any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased United States.
(c) If this Agreement is terminated pursuant to this Section 9 by an amount in excess of one-ninth of 11, such number of Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters termination shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs is more than one-tenth of the 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 Agreement will terminate without liability on the part of any non-defaulting Underwriter or party to any other party, except to the Companyextent provided in Section 6. In Notwithstanding any such case which does not result termination, the provisions of Section 9 shall remain 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 effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of any such Underwriter under this Agreementeffect.
Appears in 1 contract
Effective Date of Agreement and Termination. This (a) If the Registration Statement has not been declared effective prior to the date of this Agreement, this Agreement shall become effective upon the later of (i) execution of this Agreementat such time, (ii) when after notification of the effectiveness of the Registration Statement has been released by the Commission Commission, as you shall release the Shares to the public. If you shall not have released the Shares prior to 5:00 p.m., New York time, on the fifth full business day after the Registration Statement shall have become effective, this Agreement shall thereupon terminate without liability on the part of the Underwriters to the Company or the Selling Stockholder, except as set forth in Section 4 and (iii) if a post-Section 7 of this Agreement. By giving notice as set forth in Section 10 of this Agreement before the time this Agreement becomes effective, you, as Representative, may prevent this Agreement from becoming effective amendment without liability of any party to the other parties, except that the Company and the Selling Stockholder shall remain obligated to pay costs and expenses to the extent provided in Section 4 and Section 7 of this Agreement. If the Registration Statement has been filed (including any post-declared effective amendment required prior 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)date of this Agreement, this Agreement shall become effective upon execution and delivery by you, the effectiveness of such post-effective amendment or new or additional registration statement. Until this Agreement becomes effective as aforesaid, it Company and the Selling Stockholder (which may be terminated by the Company by notifying the Underwriters or by the Underwriters by notifying the Company. power- of-attorney).
(b) This Agreement may be terminated by you in your absolute discretion by giving written notice to the Company and the Selling Stockholder (which may be through power-of-attorney) at any time after it becomes effective and on or prior to the Closing Date by you by written notice or, with respect to the Company purchase of the Option Shares, on or prior to any later date on which the Option Shares are to be purchased, 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, any material adverse change or development involving a prospective adverse change in or affecting particularly the condition (financial or otherwise) of the Company and its subsidiaries considered as a whole or the earnings, prospects or business affairs of the Company and its subsidiaries considered as a whole, whether or not arising in the ordinary course of business, which would materially impair the investment quality of the offered securities; or (ii) if there shall have been the engagement in major hostilities or an escalation of major hostilities by the United States or the declaration of war or a national emergency by the United States on or after the date hereof, or any outbreak or escalation of major 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 material adverse change in economic or political conditions or in on the financial markets of the United States or elsewhere that, in your judgment, is material and adverse and would, in your sole judgment, make it impracticable to market the Securities on offering or delivery of the terms and in the manner contemplated in the ProspectusShares impracticable, or (iiiii) the if there shall have been suspension or material limitation of trading in securities generally or a material adverse decline in value of securities generally on the New York Stock Exchange, the American Stock Exchange Exchange, or the The Nasdaq National Market Stock Market, or limitation limitations on prices (other than limitations on hours or numbers of days of trading) for securities on any either such exchange or the Nasdaq National Market system, or (iiiiv) if there shall have 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, or change in material substantive policy by, any court, legislative body, agency or other foreign or domestic governmental authority which in your sole judgment materially and adversely affects or will materially adversely affect the business, operations or prospects of the Company and its subsidiaries considered as a whole, or (v) if there shall have been the declaration of a banking moratorium by either federal or United States, New York State or California state authorities, or (vi) if there shall have been the taking of any action by any United States, state or local government or agency in respect of its monetary or fiscal affairs which in your reasonable judgment has a material adverse effect on the securities markets in the United States or (vii) existing international monetary conditions shall have undergone a material change which, in your sole judgment, makes the offering or delivery of the Shares impracticable. 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 number 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 number of Securities to be purchased on such date by all Underwriters, each non-defaulting Underwriter this Agreement shall be obligated severally, in the proportion which the number of Securities set forth opposite its name in Annex I bears to the total number of Securities 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 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 Securities which any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased terminated pursuant to this Section 9 by an amount in excess of one-ninth of such number of Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters 9, there shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs is more than one-tenth be no liability of the aggregate number of Securities Company or the Selling Stockholder to be purchased on such date by all the Underwriters and arrangements satisfactory no liability of the Underwriters to you and the Company for purchase of such Securities are not made within 48 hours after such default, this Agreement will terminate without liability on the part of any non-defaulting Underwriter or the Company. In any such case which does not result Selling Stockholder (except to the extent provided in termination Section 4 or Section 7 of this Agreement); provided, either you or the Company shall have the right to postpone the Closing Datehowever, 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. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default event of any such Underwriter termination the Company agrees to indemnify and hold harmless the Underwriters from all costs or expenses of the Company incident to the performance of the obligations of the Company under this Agreement, including all costs, expenses and advances referred to in Section 4 of this Agreement.
Appears in 1 contract
Samples: Underwriting Agreement (Creative Master International Inc)
Effective Date of Agreement and Termination. (a) This Agreement shall become effective upon the later of immediately as to Sections 6 and 9 and, as to all other provisions, (i) if at the time of execution of this Agreement the Registration Statement has not become effective, at 10:00 A.M. eastern time on the first full business day following the effectiveness of the Registration Statement, or (ii) if at the time of execution of this Agreement, (ii) when notification of the effectiveness of the Registration Statement has been released by declared effective, at 10:00 A.M. eastern time on the Commission and (iii) if a post-first full business day following the date of execution of this Agreement; but this Agreement shall nevertheless become effective amendment to at such earlier time after the Registration Statement has been filed (including becomes effective as you may determine on and by notice to the Company or by release of any post-effective amendment required of the Shares for sale 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)public. For the purposes of this Section 11, the effectiveness Shares shall be deemed to have been so released upon the release for publication of such post-effective amendment any newspaper advertisement relating to the Shares or new upon the release by you of telegrams or additional registration statementfacsimile messages (i) advising the Underwriters that the Shares are released for public offering, or (ii) offering the Shares for sale to securities dealers, whichever may occur first. Until By giving notice before the time this Agreement becomes effective effective, you, as aforesaidthe Representative of the several Underwriters, it or the Company, may be terminated by 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 6 hereof.
(b) You may terminate this Agreement by notifying notice to the Underwriters or by Company and the Underwriters by notifying the Company. This Agreement may be terminated Selling Stockholder at any time after it becomes effective and at or prior to the Closing Date by you by written notice to Time in accordance with the Company if any last paragraph of the following has occurred: Section 7 of this Agreement:
(i) if there has been, since the respective dates as of which information is given in the Registration Statement, any material adverse change, or any development which might reasonably be viewed as resulting in a material adverse change in or affecting the assets, properties, results of operation, financial condition or business prospects of the Company, whether or not arising in the ordinary course of business;
(ii) if there has occurred or accelerated any outbreak or escalation of hostilities or other national or international calamity or crisis or change in economic or political conditions or in the effect of which on the financial markets of the United States or elsewhere thatis such as to make it, in your judgment, is material and adverse and would, in your judgment, make it impracticable to market the Securities on Shares or enforce contracts for the terms and sale of the Shares;
(iii) if trading in any securities of the manner contemplated in Company has been suspended by the ProspectusCommission or by the NASD or NSM, or (ii) the suspension or material limitation of if trading in securities generally on the New York Stock Exchange, the American Stock Exchange or in the Nasdaq National Market over-the-counter market has been suspended for more than three (3) hours, or limitation limitations on prices for trading (other than limitations on hours or numbers of days of trading) have been fixed, or maximum ranges for prices for securities on any have been required, by such exchange or the Nasdaq National Market NASD or by order of the Commission or any other governmental authority;
(iiiiv) the declaration of if a banking moratorium has been declared by either federal or New York State or Kentucky authorities. If ;
(v) 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
(vi) any action has been taken by any federal, state or local government or agency in respect of its monetary or fiscal affairs which in your reasonable opinion has a material adverse effect 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 number 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 number of Securities to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, securities markets in the proportion which the number of Securities set forth opposite its name in Annex I bears to the total number of Securities 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 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 Securities which any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased United States.
(c) If this Agreement is terminated pursuant to this Section 9 by an amount in excess of one-ninth of 11, such number of Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters termination shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs is more than one-tenth of the 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 Agreement will terminate without liability on the part of any non-defaulting Underwriter or party to any other party, except to the Companyextent provided in Section 6. In Notwithstanding any such case which does not result termination, the provisions of Section 9 shall remain 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 effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of any such Underwriter under this Agreementeffect.
Appears in 1 contract
Effective Date of Agreement and Termination. (a) This Agreement shall become effective upon the later of immediately as to Sections 4 and 6 and, as to all other provisions, (i) if at the time of execution of this AgreementAgreement the Registration Statement has not become effective, (ii) when notification of at 10:00 a.m. New York, New York time, on the first full business day following the effectiveness of the Registration Statement has been released by the Commission and Statement, or (iiiii) if a post-effective amendment to at the time of execution of this Agreement the Registration Statement has been filed (including declared effective, at 10:00 a.m. New York, New York time on the first full business day following the date of execution of this Agreement; but this Agreement shall nevertheless become effective at such earlier time after the Registration Statement becomes effective as you may determine on and by notice to the Company or by release of any post-effective amendment required of the Shares for sale 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)public. For the purposes of this Section 8, the effectiveness Shares shall be deemed to have been so released upon the release of such post-effective amendment publication of any newspaper advertisement relating to the Shares or new upon the release by you of telegrams (i) advising the Underwriters that the Shares are released for public offering, or additional registration statement(ii) offering the Shares for sale to securities dealers, whichever may occur first. Until By giving notice before the time this Agreement becomes effective effective, you, as aforesaidrepresentative of the several Underwriters, it or the Company, may be terminated by 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 notifying the Underwriters or by the Underwriters by notifying notice to the Company. This Agreement may be terminated , at any time after it becomes effective and at or prior to the Closing Date by you by written notice to the Company if any of the following has occurred: Time (i) in accordance with the final paragraph of Section 5 of this Agreement; (ii) if there has been since the respective dates as of which information is given in the Registration Statement, any 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; (iii) if there has occurred or accelerated any outbreak or escalation of hostilities or other national or international calamity or crisis or change in economic or political conditions or in the effect of which on the financial markets of the United States or elsewhere thatis such as to make it, in your judgment, is material and adverse and would, in your judgment, make it impracticable to market the Securities on Shares or enforce contracts for the terms and in sale of the manner contemplated in the Prospectus, or Shares; (iiiv) the suspension or material limitation of if trading in any securities of the Company has been suspended by the Commission or by the Nasdaq National Market or if trading generally on the New York Stock Exchange, the American Stock Exchange or in the Nasdaq National Market over-the-counter market has been suspended, or limitation limitations on prices for trading (other than limitations on hours or numbers of days of trading) have been fixed, or maximum ranges for prices for securities on any have been required, by such exchange or the Nasdaq National Market NASD or by order of the Commission or any other governmental authority; (iiiv) if there has been any downgrading in the declaration rating of any of the Company's debt securities; preferred stock by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) of the 1933 Act Regulations); (vi) if a banking moratorium has been declared by either federal or New York State or Tennessee authorities. If ; (vii) 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 (viii) any action has been taken by any federal, state or local government or agency in respect of its monetary or fiscal affairs which in your reasonable opinion has a material adverse effect 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 number 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 number of Securities to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, securities markets in the proportion which the number of Securities set forth opposite its name in Annex I bears to the total number of Securities 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 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 Securities which any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased United States.
(c) If this Agreement is terminated pursuant to this Section 9 by an amount in excess of one-ninth of 8, such number of Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters termination shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs is more than one-tenth of the 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 Agreement will terminate without liability on the part of any non-defaulting Underwriter or party to any other party, except to the Companyextent provided in Section 4. In Notwithstanding any such case which does not result termination, the provisions of Section 6 shall remain 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 effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of any such Underwriter under this Agreementeffect.
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement shall become effective upon the later of at such time (i) execution of this Agreement, (ii) when after notification of the effectiveness of the Registration Statement has been released by the Commission Commission) as the International Underwriters, the Selling Stockholder and (iii) if a post-effective amendment the Company shall agree on the initial public offering price and underwriting discount per share, unless prior to such time such of the International Underwriters as have agreed to purchase in the aggregate 50% or more of the International Securities shall have given notice to the Registration Statement has been filed (including any post-Company that such Underwriters elect that this Agreement shall not become effective; PROVIDED, HOWEVER, that the provisions of this Section 10 and of Section 8 hereof shall at all times be effective. If this Agreement shall not have become effective amendment required prior 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 5:00 PM, New York City time, on the Act)seventh full business day after the Effective Date, this Agreement shall not thereafter become effective unless such period is extended by agreement among the International Underwriters, 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 Selling Stockholder and the Company. This Agreement may shall be terminated at any time after it becomes effective and prior subject to termination in the Closing Date absolute discretion of the International Representatives, by you by written notice given to the Company prior to delivery of and payment for the International Securities, if any of the following has occurred: prior to such time (i) trading in the Company's Common Stock shall have been suspended by the Commission or the New York Stock Exchange or trading in securities generally on the New York Stock Exchange shall have been suspended or limited or minimum prices shall have been established on such Exchange, (ii) a banking moratorium shall have been declared either by Federal or New York or Oklahoma State authorities or (iii) there shall have occurred any outbreak or escalation of hostilities hostilities, declaration by the United States of a national emergency or war or other national or international calamity or crisis or change in economic conditions or in the effect of which on financial markets of the United States or elsewhere that, in your judgment, is material and adverse and would, in your judgment, such as to make it impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus, or (ii) the suspension or material limitation of trading in securities on the New York Stock Exchange, the American Stock Exchange or the Nasdaq National Market or limitation on prices for securities on any such exchange or the Nasdaq National Market or (iii) the declaration of a banking moratorium by either federal or New York State authorities. 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 number 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 number of Securities to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severallyit, in the proportion which judgment of the number International Representatives, impracticable or inadvisable to proceed with the offering or delivery of Securities set forth opposite its name in Annex I bears to the total number of Securities 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 Securities which such defaulting Underwriter or Underwriters, as contemplated by 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 Underwriter has agreed to purchase pursuant to Section 2 hereof be increased pursuant to this Section 9 by an amount in excess of one-ninth of such number of Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs is more than one-tenth of the 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 Agreement will terminate without liability on the part International Prospectus (exclusive of any non-defaulting Underwriter or the Company. 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 effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of any such Underwriter under this Agreementsupplement thereto).
Appears in 1 contract
Samples: International Underwriting Agreement (Louis Dreyfus Natural Gas Corp)
Effective Date of Agreement and Termination. This (a) If the Registration Statement has not been declared effective prior to the date of this Agreement, this Agreement shall become effective upon the later of (i) execution of this Agreementat such time, (ii) when after notification of the effectiveness of the Registration Statement has been released by the Commission Commission, as the Representative and the Company shall agree upon the public offering price and other terms and the purchase price of the Securities. If the public offering price and other terms and the purchase price of the Securities shall not have been determined prior to 5:00 p.m., New York time, on the third full business day after the Registration Statement has become effective, this Agreement shall thereupon terminate without liability on the part of the Company to the Underwriters (iii) if a post-except as provided in Section 4 or Section 7 of this Agreement). By giving notice before the time this Agreement becomes effective, the Representative, as representative of the several Underwriters, may prevent this Agreement from becoming effective amendment without liability of any party to the other party, except that the Company shall remain obligated to pay costs and expenses to the extent provided in Section 4 and Section 7 of this Agreement. If the Registration Statement has been filed (including any post-declared effective amendment required prior 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)date of this Agreement, the effectiveness of such post-effective amendment or new or additional registration statement. Until this Agreement becomes shall become effective as aforesaid, it upon execution and delivery by the Representative and the Company.
(b) This Agreement may be terminated by the Representative in its absolute discretion by giving written notice to the Company by notifying the Underwriters or by the Underwriters by notifying the Company. This Agreement may be terminated at any time after it becomes effective and on or prior to the Closing Date by you by written notice or, with respect to the purchase of the Option Shares, to the Company on or prior to any later date on which the Option Shares are to be purchased, as the case may be, if prior to such time any of the following has occurredoccurred or, in the Representative's opinion, is likely to occur: (i) after the respective dates as of which information is given in the Registration Statement and the Prospectus, any outbreak material change or escalation of hostilities or other national or international calamity or crisis or development involving a prospective adverse change in economic conditions or in affecting the business, properties, condition (financial markets or otherwise), results of operations or prospects of the United States or elsewhere thatCompany and its subsidiaries taken as a whole, in your judgment, is material and adverse and which would, in your the Representative's sole judgment, make it impracticable to market the offering or the delivery of the Securities on the terms and in the manner contemplated in the Prospectus, impracticable or inadvisable; or (ii) the suspension or material limitation of if trading in securities of the Company has been suspended by the Commission or if trading generally on the New York Stock Exchange, the American Stock Exchange or the Exchange, Nasdaq National Market or limitation on over-the-counter market has been suspended or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities on any have been required, by either of such exchange exchanges, by the NASD or by the Nasdaq National Market Commission; or (iii) if there shall have been the declaration enactment, publication, decree or other promulgation of a banking moratorium by either any federal or New York State authorities. If on state statute, regulation, rule or order of, or commencement of any proceeding or investigation by, court, legislative body, agency or other governmental authority which in the Closing DateRepresentative's sole judgment materially affects or may materially affect the business, any one properties, condition (financial or more otherwise), results of operations or prospects of the Underwriters shall fail or refuse to purchase the Securities which it or they have agreed to purchase hereunder on such date Company and the aggregate number 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 number of Securities to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, in the proportion which the number of Securities set forth opposite its name in Annex I bears to the total number of Securities 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 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 Securities which any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased pursuant to this Section 9 by an amount in excess of one-ninth of such number of Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs is more than one-tenth of the 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 Agreement will terminate without liability on the part of any non-defaulting Underwriter or the Company. 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 effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of any such Underwriter under this Agreement.its
Appears in 1 contract
Effective Date of Agreement and Termination. (a) This Agreement shall become effective upon the later of immediately as to Sections 6 and 9 and, as to all other provisions, (i) if at the time of execution of this Agreement the Registration Statement has not become effective, at 9:00 A.M. prevailing Eastern time, on the first full business day following the effectiveness of the Registration Statement, or (ii) if at the time of execution of this Agreement, (ii) when notification of the effectiveness of the Registration Statement has been released by declared effective, at 9:00 A.M. prevailing Eastern time on the Commission and (iii) if a post-first full business day following the date of execution of this Agreement; but this Agreement shall nevertheless become effective amendment to at such earlier time after the Registration Statement has been filed (including becomes effective as you may determine on and by notice to the Company or by release of any post-effective amendment required of the Shares for sale 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)public. For the purposes of this Section 11, the effectiveness Shares shall be deemed to have been so released upon the release for publication of such post-effective amendment any newspaper advertisement relating to the Shares or new upon the release by you of telegrams or additional registration statementfacsimile messages (i) advising the Underwriters that the Shares are released for public offering, or (ii) offering the Shares for sale to securities dealers, whichever may occur first. Until By giving notice before the time this Agreement becomes effective effective, you, as aforesaidthe Representatives of the several Underwriters, it or the Company, may be terminated by 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 6 hereof.
(b) You may terminate this Agreement by notifying notice to the Underwriters or by the Underwriters by notifying the Company. This Agreement may be terminated Company at any time after it becomes effective and at or prior to the Closing Date by you by written notice to in accordance with the Company if any last paragraph of the following has occurred: Section 7 of this Agreement.
(ic) 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, If this Agreement is material and adverse and would, in your judgment, make it impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus, or (ii) the suspension or material limitation of trading in securities on the New York Stock Exchange, the American Stock Exchange or the Nasdaq National Market or limitation on prices for securities on any such exchange or the Nasdaq National Market or (iii) the declaration of a banking moratorium by either federal or New York State authorities. 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 number 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 number of Securities to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, in the proportion which the number of Securities set forth opposite its name in Annex I bears to the total number of Securities 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 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 Securities which any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased terminated pursuant to this Section 9 by an amount in excess of one-ninth of 11, such number of Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters termination shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs is more than one-tenth of the 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 Agreement will terminate without liability on the part of any non-defaulting Underwriter or the Company. In party to any other party, except that, notwithstanding any such case which does not result termination, (i) the provisions of Section 6 and Section 9 shall remain in termination of this Agreementeffect, either you or and (ii) if any Shares have been purchased hereunder, the Company representations and warranties in Section 1 and all obligations under Section 4 shall have the right to postpone the Closing Date, but also remain 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. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of any such Underwriter under this Agreementeffect.
Appears in 1 contract
Samples: Underwriting Agreement (Windrose Medical Properties Trust)
Effective Date of Agreement and Termination. This (a) If the Registration Statement has not been declared effective prior to the date of this Agreement, this Agreement shall become effective upon the later of (i) execution of this Agreementat such time, (ii) when after notification of the effectiveness of the Registration Statement has been released by the Commission Commission, as the Representatives and the Company shall agree upon the public offering price and the purchase price of the Shares. If the public offering price and the purchase price of the Shares shall not have been determined prior to 5:00 p.m., New York time, on the fifth full business day after the Registration Statement has become effective, this Agreement shall thereupon terminate without liability on the part of the Company or the Selling Stockholders to the Underwriters (iiiexcept as provided in Section 6 or Section 9 of this Agreement) if a post-or the Underwriters to the Company or the Selling Stockholders (except as set forth in Section 9 of this Agreement). By giving notice before the time this Agreement becomes effective, the Representatives may prevent this Agreement from becoming effective amendment without liability of any party to the other party, except that the Company shall remain obligated to pay costs and expenses to the extent provided in Section 6 and Section 9 of this Agreement. If the Registration Statement has been filed (including any post-declared effective amendment required prior 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)date of this Agreement, this Agreement shall become effective upon execution and delivery by the Representatives, the effectiveness of such post-effective amendment or new or additional registration statement. Until this Company and the Attorneys.
(b) This Agreement becomes effective as aforesaid, it may be terminated by the Representatives in their absolute discretion by giving written notice to the Company by notifying the Underwriters or by the Underwriters by notifying the Company. This Agreement may be terminated at any time after it becomes effective and on or prior to the Closing Date by you by written notice or, with respect to the Company purchase of the Option Shares, on or prior to any later date on which the Option Shares are to be purchased, as the case may be, if prior to such time any of the following has occurredoccurred or, in the Representatives' reasonable opinion, is likely to occur: (i) after the respective dates as of which information is given in the Registration Statement and the Prospectus, any Consolidated Material Adverse Effect or development involving a prospective Consolidated Material Adverse Effect in or affecting particularly the business, properties, condition (financial or otherwise), results of operations or prospects of the Company and its direct and indirect subsidiaries, taken as a whole, whether or not arising in the ordinary course of business, occurs which would, in the Representatives' reasonable judgment, make the offering or the delivery of the Shares impracticable or inadvisable; or (ii) if there shall have been the engagement in hostilities or an escalation of major hostilities by the United States or the declaration of war or a national emergency by the United States on or after the date hereof, or any outbreak or escalation of hostilities or other national or international calamity or crisis or change in economic or political conditions, if the effect of such outbreak, calamity, crisis or change in economic or political conditions or in on the financial markets of the United States or elsewhere that, in your judgment, is material and adverse and would, in your the Representatives' reasonable judgment, make it the offering or delivery of the Shares impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus, or inadvisable; or (iiiii) the if there shall have been suspension or material limitation of trading in securities generally or a material adverse decline in value of securities generally on the New York Stock Exchange, the American Stock Exchange or Exchange, the Nasdaq National Market Market, or limitation limitations on prices (other than limitations on hours or numbers of days of trading) for securities on any either such exchange or the Nasdaq National Market system; or (iiiiv) if there shall have 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 the Representatives' reasonable judgment has or may have a Consolidated Material Adverse Effect; or (v) if there shall have been the declaration of a banking moratorium by either federal or federal, New York State or California state authorities; or (vi) if there shall have been the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs which in the Representatives' reasonable judgment has a material adverse effect on the securities markets in the United States; or (vii) existing international monetary conditions shall have undergone a material adverse change which, in your reasonable judgment, makes the offering or delivery of the Shares impracticable or inadvisable. 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 number 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 number of Securities to be purchased on such date by all Underwriters, each non-defaulting Underwriter this Agreement shall be obligated severally, in the proportion which the number of Securities set forth opposite its name in Annex I bears to the total number of Securities 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 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 Securities which any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased terminated pursuant to this Section 9 by an amount in excess of one-ninth of such number of Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters 11, there shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs is more than one-tenth be no liability of the 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 Agreement will terminate without liability on the part of any non-defaulting Underwriter or the Company. In any such case which does not result in termination Selling Stockholders to the Underwriters (except pursuant to Section 6 and Section 9 of this Agreement, either you ) and no liability of the Underwriters to the Company or the Company shall have Selling Stockholders (except to the right to postpone the Closing Date, but extent provided 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. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect Section 9 of any default of any such Underwriter under this Agreement).
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement ------------------------------------------- shall become effective upon the later of (i) execution of this Agreement, (ii) when notification of the effectiveness of the Registration Statement has been released by the Commission 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 after it becomes effective and prior to the Closing Date by you by written notice to the Company if (a) any of the following has occurredoccurred after the execution and delivery of this Agreement and prior to the Closing Date: (i) trading in securities generally on the New York Stock Exchange or the American Stock Exchange shall have been suspended or materially limited, (ii) a general moratorium on commercial banking activities in New York shall have been declared by either Federal or New York State authorities, or (iii) there shall have occurred any material outbreak or escalation of hostilities or other national or international calamity or crisis or any change in economic conditions or in the financial markets of the United States or elsewhere other calamity or crisis that, in your judgment, is material and adverse adverse; and would(b) in the case of any of the events specified in (a) above, such event singly or together with any other such event makes it, in your judgment, make it impracticable to market the Securities Shares on the terms and in the manner contemplated in the Prospectus, or (ii) the suspension or material limitation of trading in securities on the New York Stock Exchange, the American Stock Exchange or the Nasdaq National Market or limitation on prices for securities on any such exchange or the Nasdaq National Market or (iii) the declaration of a banking moratorium by either federal or New York State authorities. 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 Securities Firm Shares or Additional Shares, as the case may be, which it or they have agreed to purchase hereunder on such date and the aggregate number of SecuritiesFirm 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 Securities 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 Securities Firm Shares set forth opposite its name in Annex Schedule I bears to the total number of Securities 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 Securities 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 Securities 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 Section 9 by an amount in excess of one-ninth of such number of Securities 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 fail or refuse to purchase Securities Firm Shares, or Additional Shares, as the case may be, and the aggregate number of Securities Firm Shares or Additional Shares, as the case may be, with respect to which such default occurs is more than one-tenth of the aggregate number of Securities Shares to be purchased on such date by all Underwriters and arrangements satisfactory to you and the Company for purchase of such Securities Shares are not made within 48 hours after such default, this Agreement will terminate without liability on the part of any non-non- defaulting Underwriter or and the Company. 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 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 effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of any such Underwriter under this Agreement.
Appears in 1 contract
Samples: Underwriting Agreement (Mbia Inc)
Effective Date of Agreement and Termination. This (a) If the Registration Statement has not been declared effective prior to the date of this Agreement, this Agreement shall become effective upon the later of (i) execution of this Agreementat such time, (ii) when after notification of the effectiveness of the Registration Statement has been released by the Commission Commission, as you shall release the Shares to the public. If you shall not have released the Shares prior to 5:00 p.m., New York time, on the fifth full business day after the Registration Statement shall have become effective, this Agreement shall thereupon terminate without liability on the part of the Underwriters to the Company or Selling Stockholders, except as set forth in Section 4 and (iii) if a post-Section 7 of this Agreement. By giving notice as set forth in Section 10 of this Agreement before the time this Agreement becomes effective, you, as Representative, may prevent this Agreement from becoming effective amendment without liability of any party to the other parties, except that the Company and the Selling Stockholders shall remain obligated to pay costs and expenses to the extent provided in Section 4 and Section 7 of this Agreement. If the Registration Statement has been filed (including any post-declared effective amendment required prior 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)date of this Agreement, this Agreement shall become effective upon execution and delivery by you, the effectiveness of such post-effective amendment or new or additional registration statement. Until this Agreement becomes effective as aforesaid, it Company and each Selling Stockholder (which may be terminated by the Company by notifying the Underwriters or by the Underwriters by notifying the Company. power-of- attorney).
(b) This Agreement may be terminated by you in your absolute discretion by giving written notice to the Company and each Selling Stockholder (which may be through power-of-attorney) at any time after it becomes effective and on or prior to the Closing Date by you by written notice or, with respect to the Company purchase of the Option Shares, on or prior to any later date on which the Option Shares are to be purchased, 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, any material adverse change or development involving a prospective adverse change in or affecting particularly the condition (financial or otherwise) of the Company and its subsidiaries considered as a whole or the earnings, prospects or business affairs of the Company and its subsidiaries considered as a whole, whether or not arising in the ordinary course of business, which would materially impair the investment quality of the offered securities; or (ii) if there shall have been the engagement in major hostilities or an escalation of major hostilities by the United States or the declaration of war or a national emergency by the United States on or after the date hereof, or any outbreak or escalation of major 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 material adverse change in economic or political conditions or in on the financial markets of the United States or elsewhere that, in your judgment, is material and adverse and would, in your sole judgment, make it impracticable to market the Securities on offering or delivery of the terms and in the manner contemplated in the ProspectusShares impracticable, or (iiiii) the if there shall have been suspension or material limitation of trading in securities generally or a material adverse decline in value of securities generally on the New York Stock Exchange, the American Stock Exchange Exchange, or the The Nasdaq National Market Stock Market, or limitation limitations on prices (other than limitations on hours or numbers of days of trading) for securities on any either such exchange or the Nasdaq National Market system, or (iiiiv) if there shall have 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, or change in material substantive policy by, any court, legislative body, agency or other foreign or domestic governmental authority which in your sole judgment materially and adversely affects or will materially adversely affect the business, operations or prospects of the Company and its subsidiaries considered as a whole, or (v) if there shall have been the declaration of a banking moratorium by either federal or United States, New York State or California state authorities, or (vi) if there shall have been the taking of any action by any United States, state or local government or agency in respect of its monetary or fiscal affairs which in your reasonable judgment has a material adverse effect on the securities markets in the United States or (vii) existing international monetary conditions shall have undergone a material change which, in your sole judgment, makes the offering or delivery of the Shares impracticable. 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 number 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 number of Securities to be purchased on such date by all Underwriters, each non-defaulting Underwriter this Agreement shall be obligated severally, in the proportion which the number of Securities set forth opposite its name in Annex I bears to the total number of Securities 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 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 Securities which any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased terminated pursuant to this Section 9 by an amount in excess of one-ninth of such number of Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters 9, there shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs is more than one-tenth be no liability of the aggregate number of Securities Company or the Selling Stockholders to be purchased on such date by all the Underwriters and arrangements satisfactory no liability of the Underwriters to you and the Company for purchase of such Securities are not made within 48 hours after such default, this Agreement will terminate without liability on the part of any non-defaulting Underwriter or the Company. In any such case which does not result Selling Stockholders (except to the extent provided in termination Section 4 or Section 7 of this Agreement); provided, either you or the Company shall have the right to postpone the Closing Datehowever, 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. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default event of any such Underwriter termination the Company agrees to indemnify and hold harmless the Underwriters from all costs or expenses of the Company incident to the performance of the obligations of the Company under this Agreement, including all costs, expenses and advances referred to in Section 4 of this Agreement.
Appears in 1 contract
Samples: Underwriting Agreement (Creative Master International Inc)
Effective Date of Agreement and Termination. This Agreement shall become (a) If the Registration Statement has not been declared effective upon prior to the later of (i) execution date of this Agreement, (ii) when this Agreement will become effective at such time, after notification of the effectiveness of the Registration Statement has been released by the Commission Commission, as you, the Company and the Selling Shareholders will agree upon the public offering price and the purchase price of the Shares. If the public offering price and the purchase price of the Shares has not been determined prior to 5:00 p.m., New York time, on the fifth full business day after the Registration Statement has become effective, this Agreement shall thereupon terminate without liability on the part of the Company or the Selling Shareholders to the Underwriters (iiiexcept as provided in Section 6 or Section 9 of this Agreement) if a post-or the Underwriters to the Company or the Selling Shareholders (except as set forth in Section 9 of this Agreement). By giving notice before the time this Agreement becomes effective, you, as Representatives of the several Underwriters, may prevent this Agreement from becoming effective amendment without liability of any party to the other party, except that the Company and the Selling Shareholders shall remain obligated to pay costs and expenses to the extent provided in Section 6 and Section 9 of this Agreement. If the Registration Statement has been filed (including any post-declared effective amendment required prior 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)date of this Agreement, this Agreement will become effective upon execution and delivery by you, 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 Company and the Company by notifying the Underwriters or by the Underwriters by notifying the Company. Selling Shareholders.
(b) This Agreement may be terminated by you in your absolute discretion by giving written notice to the Company and the Selling Shareholders at any time after it becomes effective and on or prior to the Closing Date by you by written notice or, with respect to the Company purchase of the Option Shares, on or prior to any later date on which the Option Shares are to be purchased, 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, any material adverse change or development involving a prospective material adverse change in or affecting particularly the business, properties, condition (financial or otherwise), results of operations 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 there has been the engagement in hostilities or an escalation of major hostilities by the United States or the declaration of war or a national emergency by the United States on or after the date hereof, or any outbreak or escalation of hostilities or other national or international calamity or crisis or change in economic or political conditions, if the effect of such outbreak, calamity, crisis or change in economic or political conditions or in on the financial markets of the United States or elsewhere that, in your judgment, is material and adverse and would, in your sole judgment, make it the offering or delivery of the Shares impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus, or inadvisable; (iiiii) the if there has been a suspension or material limitation of trading in securities generally or a material adverse decline in value of securities generally on the New York Stock Exchange, the American Stock Exchange or the Nasdaq National Market or limitation limitations on prices (other than limitations on hours or numbers of days of trading) for securities on any either such exchange or system; (iv) if there has been the Nasdaq National Market 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, properties, condition (iiifinancial or other otherwise), results of operations or prospects of the Company; (v) if there has been the declaration of a banking moratorium by either federal or federal, New York State or California state authorities; (vi) if there shall have been 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 sole judgment has a material adverse effect on the securities markets in the United States; or (vii) existing international monetary conditions shall have undergone a material change which, in your sole judgment, makes the offering or delivery of the Shares impracticable or inadvisable. 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 number of Securities, which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase this Agreement 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 proportion which the number of Securities set forth opposite its name in Annex I bears to the total number of Securities 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 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 Securities which any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased terminated pursuant to this Section 9 by an amount in excess of one-ninth of such number of Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs is more than one-tenth 11, there will be no liability of the 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 Agreement will terminate without liability on the part of any non-defaulting Underwriter or the Company. In any such case which does not result in termination Selling Shareholders to the Underwriters (except pursuant to Section 6 and Section 9 of this Agreement, either you ) and no liability of the Underwriters to the Company or the Company shall have Selling Shareholders (except to the right to postpone the Closing Date, but extent provided 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. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect Section 9 of any default of any such Underwriter under this Agreement).
Appears in 1 contract
Effective Date of Agreement and Termination. This (a) If the Registration Statement has not been declared effective prior to the date of this Agreement, this Agreement shall become effective upon the later of (i) execution of this Agreementat such time, (ii) when after notification of the effectiveness of the Registration Statement has been released by the Commission Commission, as you shall release the Shares to the public. If you shall not have released the Shares prior to 5:00 p.m., New York time, on the fifth full business day after the Registration Statement shall have become effective, this Agreement shall thereupon terminate without liability on the part of the Underwriters to the Company or the Company to the Underwriters, except as set forth in Section 7 of this Agreement. By giving notice as set forth in Section 9 of this Agreement before the time this Agreement becomes effective, you, as Representatives, may prevent this Agreement from becoming effective without liability of any party to the other party, except as set forth in Section 7 of this Agreement and (iii) if a post-effective amendment that the Company shall remain obligated to pay costs and expenses to the extent provided in Section 4 of this Agreement. If the Registration Statement has been filed (including any post-declared effective amendment required prior 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)date of this Agreement, the effectiveness of such post-effective amendment or new or additional registration statement. Until this Agreement becomes shall become effective as aforesaid, it may be terminated upon execution and delivery by the Company by notifying the Underwriters or by the Underwriters by notifying you and the Company. .
(b) This Agreement may be terminated by you in your absolute discretion by giving written notice to the Company at any time after it becomes effective and on or prior to the Closing Date by you by written notice or, with respect to the Company purchase of the Option Shares, on or prior to any later date on which the Option Shares are to be purchased, 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, any material adverse change or development involving a prospective adverse change in or affecting particularly the condition (financial or otherwise) of the Company and its subsidiaries considered as a whole or the earnings, prospects or business affairs of the Company and its subsidiaries considered as a whole, whether or not arising in the ordinary course of business, which would materially impair the investment quality of the offered securities; or (ii) if there shall have been the engagement in major hostilities or an escalation of major hostilities by the United States or the declaration of war or a national emergency by the United States on or after the date hereof, or any outbreak or escalation of major 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 material adverse change in economic or political conditions or in on the financial markets of the United States or elsewhere that, in your judgment, is material and adverse and would, in your sole judgment, make it impracticable to market the Securities on offering or delivery of the terms and in the manner contemplated in the ProspectusShares impracticable, or (iiiii) the if there shall have been suspension or material limitation of trading in securities generally or a material adverse decline in value of securities generally on the New York Stock Exchange, the American Stock Exchange Exchange, or the The Nasdaq National Market Stock Market, or limitation limitations on prices (other than limitations on hours or numbers of days of trading) for securities on any either such exchange or the Nasdaq National Market system, or (iiiiv) if there shall have 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, or change in material substantive policy by, any court, legislative body, agency or other foreign or domestic governmental authority which in your sole judgment materially and adversely affects or will materially adversely affect the business, operations or prospects of the Company and its subsidiaries considered as a whole, or (v) if there shall have been the declaration of a banking moratorium by either federal or United States, New York State or California state authorities, or (vi) if there shall have been the taking of any action by any United States, state or local government or agency in respect of its monetary or fiscal affairs which in your reasonable judgment has a material adverse effect on the securities markets in the United States or (vii) existing international monetary conditions shall have undergone a material change which, in your sole judgment, makes the offering or delivery of the Shares impracticable. 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 number 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 number of Securities to be purchased on such date by all Underwriters, each non-defaulting Underwriter this Agreement shall be obligated severally, in the proportion which the number of Securities set forth opposite its name in Annex I bears to the total number of Securities 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 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 Securities which any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased terminated pursuant to this Section 9 by an amount in excess of one-ninth of such number of Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters 8, there shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs is more than one-tenth be no liability of the aggregate number of Securities Company to be purchased on such date by all the Underwriters and arrangements satisfactory no liability of the Underwriters to you and the Company for purchase of such Securities are not made within 48 hours after such default, this Agreement will terminate without liability on (except to the part of any non-defaulting Underwriter extent provided in Section 4 or the Company. In any such case which does not result in termination Section 7 of this Agreement); provided, either you or the Company shall have the right to postpone the Closing Datehowever, 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. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default event of any such Underwriter termination the Company agrees to indemnify and hold harmless the Underwriters from all costs or expenses of the Company incident to the performance of the obligations of the Company under this Agreement, including all costs, expenses and advances referred to in Section 4 of this Agreement.
Appears in 1 contract
Samples: Underwriting Agreement (Intra Asia Entertainment Corp)
Effective Date of Agreement and Termination. This (a) If the Registration Statement has not been declared effective prior to the date of this Agreement, this Agreement shall become effective upon the later of (i) execution of this Agreementat such time, (ii) when after notification of the effectiveness of the Registration Statement has been released by the Commission Commission, as you shall release the Shares to the public. If you shall not have released the Shares prior to 5:00 p.m., New York time, on the fifth full business day after the Registration Statement shall have become effective, this Agreement shall thereupon terminate without liability on the part of the Underwriters to the Company, except as set forth in Section 7 of this Agreement. By giving notice as set forth in Section 9 of this Agreement before the time this Agreement becomes effective, you, as Representative, may prevent this Agreement from becoming effective without liability of any party to the other party, except that the Company shall remain obligated to pay costs and (iii) if a post-effective amendment expenses to the extent provided in Section 4 and Section 7 of this Agreement. If the Registration Statement has been filed (including any post-declared effective amendment required prior 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)date of this Agreement, the effectiveness of such post-effective amendment or new or additional registration statement. Until this Agreement becomes shall become effective as aforesaid, it may be terminated upon execution and delivery by the Company by notifying the Underwriters or by the Underwriters by notifying you and the Company. .
(b) This Agreement may be terminated by you in your absolute discretion by giving written notice to the Company at any time after it becomes effective and on or prior to the Closing Date by you by written notice or, with respect to the Company purchase of the Option Shares, on or prior to any later date on which the Option Shares are to be purchased, 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, any material adverse change or development involving a prospective adverse change in or affecting particularly the condition (financial or otherwise) of the Company and its subsidiaries considered as a whole or the earnings, prospects or business affairs of the Company and its subsidiaries considered as a whole, whether or not arising in the ordinary course of business, which would materially impair the investment quality of the offered securities; or (ii) if there shall have been the engagement in major hostilities or an escalation of major hostilities by the United States or the declaration of war or a national emergency by the United States on or after the date hereof, or any outbreak or escalation of major 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 material adverse change in economic or political conditions or in on the financial markets of the United States or elsewhere that, in your judgment, is material and adverse and would, in your sole judgment, make it impracticable to market the Securities on offering or delivery of the terms and in the manner contemplated in the ProspectusShares impracticable, or (iiiii) the if there shall have been suspension or material limitation of trading in securities generally or a material adverse decline in value of securities generally on the New York Stock Exchange, the American Stock Exchange Exchange, or the The Nasdaq National Market Stock Market, or limitation limitations on prices (other than limitations on hours or numbers of days of trading) for securities on any either such exchange or the Nasdaq National Market system, or (iiiiv) if there shall have 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, or change in material substantive policy by, any court, legislative body, agency or other foreign or domestic governmental authority which in your sole judgment materially and adversely affects or will materially adversely affect the business, operations or prospects of the Company and its subsidiaries considered as a whole, or (v) if there shall have been the declaration of a banking moratorium by either federal or United States, New York State or California state authorities, or (vi) if there shall have been the taking of any action by any United States, state or local government or agency in respect of its monetary or fiscal affairs which in your reasonable judgment has a material adverse effect on the securities markets in the United States or (vii) existing international monetary conditions shall have undergone a material change which, in your sole judgment, makes the offering or delivery of the Shares impracticable. 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 number 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 number of Securities to be purchased on such date by all Underwriters, each non-defaulting Underwriter this Agreement shall be obligated severally, in the proportion which the number of Securities set forth opposite its name in Annex I bears to the total number of Securities 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 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 Securities which any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased terminated pursuant to this Section 9 by an amount in excess of one-ninth of such number of Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters 8, there shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs is more than one-tenth be no liability of the aggregate number of Securities Company to be purchased on such date by all the Underwriters and arrangements satisfactory no liability of the Underwriters to you and the Company for purchase of such Securities are not made within 48 hours after such default, this Agreement will terminate without liability on (except to the part of any non-defaulting Underwriter extent provided in Section 4 or the Company. In any such case which does not result in termination Section 7 of this Agreement); provided, either you or the Company shall have the right to postpone the Closing Datehowever, 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. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default event of any such Underwriter termination the Company agrees to indemnify and hold harmless the Underwriters from all costs or expenses of the Company incident to the performance of the obligations of the Company under this Agreement, including all costs, expenses and advances referred to in Section 4 of this Agreement.
Appears in 1 contract
Samples: Underwriting Agreement (Creative Master International Inc)
Effective Date of Agreement and Termination. (a) This Agreement shall become effective upon the later of immediately as to Sections 5 and 8 and, as to all other provisions, (i) if at the time of execution of this Agreement the Registration Statement has not become effective, at 9:00 A.M., prevailing Eastern time, on the first full business day following the effectiveness of the Registration Statement, or (ii) if at the time of execution of this Agreement, (ii) when notification of the effectiveness of the Registration Statement has been released by declared effective, at 9:00 A.M., prevailing Eastern time, on the Commission and (iii) if a post-first full business day following the date of execution of this Agreement; but this Agreement shall nevertheless become effective amendment to at such earlier time after the Registration Statement has been filed (including becomes effective as you may determine on and by notice to the Company or by release of any post-effective amendment required of the Shares for sale 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)public. For the purposes of this Section 10, the effectiveness Shares shall be deemed to have been so released upon the release for publication of such post-effective amendment any newspaper advertisement relating to the Shares or new upon the release by you of telegrams or additional registration statementfacsimile messages (i) advising the Underwriters that the Shares are released for public offering, or (ii) offering the Shares for sale to securities dealers, whichever may occur first. Until By giving notice before the time this Agreement becomes effective effective, you, as aforesaidthe Representative of the several Underwriters, it or the Company, may be terminated by 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 5 hereof.
(b) You may terminate this Agreement by notifying notice to the Underwriters or by the Underwriters by notifying the Company. This Agreement may be terminated Company at any time after it becomes effective and at or prior to the Closing Date by you by written notice to in accordance with the Company if any last paragraph of the following has occurred: Section 6 of this Agreement.
(ic) 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, If this Agreement is material and adverse and would, in your judgment, make it impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus, or (ii) the suspension or material limitation of trading in securities on the New York Stock Exchange, the American Stock Exchange or the Nasdaq National Market or limitation on prices for securities on any such exchange or the Nasdaq National Market or (iii) the declaration of a banking moratorium by either federal or New York State authorities. 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 number 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 number of Securities to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, in the proportion which the number of Securities set forth opposite its name in Annex I bears to the total number of Securities 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 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 Securities which any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased terminated pursuant to this Section 9 by an amount in excess of one-ninth of 10, such number of Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters termination shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs is more than one-tenth of the 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 Agreement will terminate without liability on the part of any non-defaulting Underwriter or the Company. In party to any other party, except that, notwithstanding any such case which does not result termination, (i) the provisions of Section 5 and Section 8 shall remain in termination of this Agreementeffect, either you or and (ii) if any Shares have been purchased hereunder, the Company representations and warranties in Section 1 and Section 2 and all obligations under Section 4 shall have the right to postpone the Closing Date, but also remain 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. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of any such Underwriter under this Agreementeffect.
Appears in 1 contract
Effective Date of Agreement and Termination. This (a) If the Registration Statement has not been declared effective prior to the date of this Agreement, this Agreement shall become effective upon the later of (i) execution of this Agreementat such time, (ii) when after notification of the effectiveness of the Registration Statement has been released by the Commission Commission, as the Representative and the Company shall agree upon the public offering price and other terms and the purchase price of the Securities. If the public offering price and other terms and the purchase price of the Securities shall not have been determined prior to 5:00 p.m., New York time, on the third full business day after the Registration Statement has become effective, this Agreement shall thereupon terminate without liability on the part of the Company to the Underwriters (iii) if a post-except as provided in Section 5 or Section 8 of this Agreement). By giving notice before the time this Agreement becomes effective, the Representative, as representative of the several Underwriters, may prevent this Agreement from becoming effective amendment without liability of any party to the other party, except that the Company shall remain obligated to pay costs and expenses to the extent provided in Section 5 and Section 8 of this Agreement. If the Registration Statement has been filed (including any post-declared effective amendment required prior 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)date of this Agreement, the effectiveness of such post-effective amendment or new or additional registration statement. Until this Agreement becomes shall become effective as aforesaid, it upon execution and delivery by the Representative and the Company.
(b) This Agreement may be terminated by the Representative in its absolute discretion by giving written notice to the Company by notifying the Underwriters or by the Underwriters by notifying the Company. This Agreement may be terminated at any time after it becomes effective and on or prior to the Closing Date by you by written notice or, with respect to the purchase of the Option Shares, to the Company on or prior to any later date on which the Option Shares are to be purchased, as the case may be, if prior to such time any of the following has occurredoccurred or, in the Representative's opinion, is likely to occur: (i) after the respective dates as of which information is given in the Registration Statement and the Prospectus, any outbreak material change or escalation of hostilities or other national or international calamity or crisis or development involving a prospective adverse change in economic conditions or in affecting the business, properties, condition (financial markets or otherwise), results of operations or prospects of the United States or elsewhere thatCompany and its subsidiaries taken as a whole, in your judgment, is material and adverse and which would, in your the Representative's sole judgment, make it impracticable to market the offering or the delivery of the Securities on the terms and in the manner contemplated in the Prospectus, impracticable or inadvisable; or (ii) the suspension or material limitation of if trading in securities of the Company has been suspended by the Commission or if trading generally on the New York Stock Exchange, the American Stock Exchange or the Exchange, Nasdaq National Market or limitation on over-the-counter market has been suspended or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities on any have been required, by either of such exchange exchanges, by the NASD or by the Nasdaq National Market Commission; or (iii) if there shall have been the declaration enactment, publication, decree or other promulgation of a banking moratorium by either any federal or New York State authorities. If on state statute, regulation, rule or order of, or commencement of any proceeding or investigation by, court, legislative body, agency or other governmental authority which in the Closing DateRepresentative's sole judgment materially affects or may materially affect the business, any one properties, condition (financial or more otherwise), results of operations or prospects of the Underwriters shall fail or refuse to purchase the Securities which it or they have agreed to purchase hereunder on such date Company and the aggregate number 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 number of Securities to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, in the proportion which the number of Securities set forth opposite its name in Annex I bears to the total number of Securities 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 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 Securities which any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased pursuant to this Section 9 by an amount in excess of one-ninth of such number of Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs is more than one-tenth of the 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 Agreement will terminate without liability on the part of any non-defaulting Underwriter or the Company. 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 effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of any such Underwriter under this Agreement.its
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement shall become effective upon the later of at such time (i) execution of this Agreement, (ii) when after notification of the effectiveness of the Registration Statement has been released by the Commission Commission) as the Underwriters, the Selling Stockholder and (iii) if a post-effective amendment the Company shall agree on the public offering price and underwriting discount per share, unless prior to such time such of the Underwriters as have agreed to purchase in the aggregate 50% or more of the Securities shall have given notice to the Registration Statement has been filed (including any post-Company that such Underwriters elect that this Agreement shall not become effective; provided, however, that the provisions of this Section 10 and of Section 8 14 14 hereof shall at all times be effective. If this Agreement shall not have become effective amendment required prior 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 5:00 PM, New York City time, on the Act)seventh full business day after the Effective Date, this Agreement shall not thereafter become effective unless such period is extended by agreement among the Underwriters, 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 Selling Stockholder and the Company. This Agreement may shall be terminated at any time after it becomes effective and prior subject to termination in the Closing Date absolute discretion of the Underwriters, by you by written notice given to the Company prior to delivery of and payment for the Securities, if any of the following has occurred: prior to such time (i) trading in the Company's Common Stock shall have been suspended by the Commission or the Nasdaq Stock Market (National Market) or trading in securities generally on the New York Stock Exchange or the Nasdaq Stock Market (National Market) shall have been suspended or limited or minimum prices shall have been established on either of such Exchange or the Nasdaq Stock Market (National Market), (ii) a banking moratorium shall have been declared either by Federal or New York State authorities or (iii) there shall have occurred any outbreak or escalation of hostilities hostilities, declaration by the United States of a national emergency or war or other national or international calamity or crisis or change in economic conditions or in the effect of which on financial markets of the United States or elsewhere that, in your judgment, is material and adverse and would, in your judgment, such as to make it impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus, or (ii) the suspension or material limitation of trading in securities on the New York Stock Exchange, the American Stock Exchange or the Nasdaq National Market or limitation on prices for securities on any such exchange or the Nasdaq National Market or (iii) the declaration of a banking moratorium by either federal or New York State authorities. 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 number 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 number of Securities to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severallyit, in the proportion which judgment of the number of Securities set forth opposite its name in Annex I bears to the total number of Securities which all the non-defaulting Underwriters, as impracticable or inadvisable to proceed with the case may be, have agreed to purchase, offering or in such other proportion as you may specify, to purchase delivery of the Securities which such defaulting Underwriter or Underwriters, as contemplated by 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 Underwriter has agreed to purchase pursuant to Section 2 hereof be increased pursuant to this Section 9 by an amount in excess of one-ninth of such number of Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs is more than one-tenth of the 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 Agreement will terminate without liability on the part Prospectus (exclusive of any non-defaulting Underwriter or the Company. 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 effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of any such Underwriter under this Agreementsupplement thereto).
Appears in 1 contract
Samples: Underwriting Agreement (Swift Transportation Co Inc)
Effective Date of Agreement and Termination. This (a) If the Registration Statement has not been declared effective prior to the date of this Agreement, this Agreement shall become effective upon the later of (i) execution of this Agreementat such time, (ii) when after notification of the effectiveness of the Registration Statement has been released by the Commission Commission, as the Representative and the Company shall agree upon the public offering price and other terms and the purchase price of the Shares. If the public offering price and other terms and the purchase price of the Shares shall not have been determined prior to 5:00 p.m., New York time, on the third full business day after the Registration Statement has become effective, this Agreement shall thereupon terminate without liability on the part of the Company to the Underwriters (iii) if a post-except as provided in Section 4 or Section 7 of this Agreement). By giving notice before the time this Agreement becomes effective, the Representative, as representative of the several Underwriters, may prevent this Agreement from becoming effective amendment without liability of any party to the other party, except that the Company shall remain obligated to pay costs and expenses to the extent provided in Section 4 and Section 7 of this Agreement. If the Registration Statement has been filed (including any post-declared effective amendment required prior 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)date of this Agreement, the effectiveness of such post-effective amendment or new or additional registration statement. Until this Agreement becomes shall become effective as aforesaid, it upon execution and delivery by the Representative and the Company.
(b) This Agreement may be terminated by the Representative in its absolute discretion by giving written notice to the Company by notifying the Underwriters or by the Underwriters by notifying the Company. This Agreement may be terminated at any time after it becomes effective and on or prior to the Closing Date by you by written notice or, with respect to the Company purchase of the Option Shares, on or prior to any later date on which the Option Shares are to be purchased, as the case may be, if prior to such time any of the following has occurredoccurred or, in the Representative's opinion, is likely to occur: (i) after the respective dates as of which information is given in the Registration Statement and the Prospectus, any outbreak material change or escalation of hostilities or other national or international calamity or crisis or development involving a prospective adverse change in economic conditions or in affecting the business, properties, condition (financial markets or otherwise), results of operations or prospects of the United States or elsewhere thatCompany and its subsidiaries taken as a whole, in your judgment, is material and adverse and which would, in your the Representative's sole judgment, make it the offering or the delivery of the Shares impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus, or inadvisable; or (ii) the suspension or material limitation of trading in securities of the Company has been suspended by the Commission or if trading generally on the New York Stock Exchange, the American Stock Exchange or the Exchange, Nasdaq National Market or limitation on over-the-counter market has been suspended or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities on any have been required, by either of such exchange exchanges, by the NASD or by the Nasdaq National Market Commission; or (iii) there shall have 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 the Representative's sole judgment materially affects or may materially affect the business, properties, condition (financial or otherwise), results of operations or prospects of the Company and its subsidiaries taken as a whole; (iv) there shall have been the declaration of a banking moratorium by either federal or federal, New York State or California authorities. If on the Closing Date, any one or more of the Underwriters ; (v) existing international monetary conditions 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, as 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 severallyundergone a material change which, in the proportion Representative's sole judgment, makes the offering or delivery of the Shares impracticable or inadvisable; or (vi) there has occurred any material change in the financial markets in the United States or internationally or any outbreak of hostilities or escalation of existing hostilities or other crisis, the effect of which in the number Representative's reasonable judgment makes the offering or delivery of Securities set forth opposite its name in Annex I bears to the total number of Securities which all the non-defaulting Underwriters, as the case may be, have agreed to purchase, Shares impracticable or 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 inadvisable. If this Agreement shall the number of Securities which any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased terminated pursuant to this Section 9 by an amount in excess of one-ninth of such number of Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters 9, there shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs is more than one-tenth be no liability of the aggregate number of Securities Company to be purchased on such date by all the Underwriters (except pursuant to Section 4 and arrangements satisfactory to you and the Company for purchase of such Securities are not made within 48 hours after such default, this Agreement will terminate without liability on the part of any non-defaulting Underwriter or the Company. In any such case which does not result in termination Section 7 of this Agreement, either you or ) and no liability of the Underwriters to the Company shall have the right (except pursuant 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 Section 4 and the Prospectus or any other documents or arrangements may be effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect Section 7 of any default of any such Underwriter under this Agreement).
Appears in 1 contract
Samples: Underwriting Agreement (Atg Inc)
Effective Date of Agreement and Termination. This Agreement shall become effective upon the later of at such time (i) execution of this Agreement, (ii) when after notification of the effectiveness of the Registration Statement has been released by the Commission Commission) as the Underwriters and (iii) if a post-effective amendment the Selling Stockholder shall agree on the initial public offering price and underwriting discount per share, unless prior to such time such of the Underwriters as have agreed to purchase in the aggregate 50% or more of the Securities shall have given notice to the Registration Statement has been filed (including any post-Company that such Underwriters elect that this Agreement shall not become effective; provided, however, that the provisions of this Section 10 and of Section 8 hereof shall at all times be effective. If this Agreement shall not have become effective amendment required prior 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 5:00 PM, New York City time, on the Act)seventh full business day after the Effective Date, this Agreement shall not thereafter become effective unless such period is extended by agreement among the Underwriters, 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 Selling Stockholder and the Company. This Agreement may shall be terminated at any time after it becomes effective and subject to termination in the absolute discretion of the Representatives, by notice given to the Selling Stockholder prior to delivery of and payment for the Closing Date by you by written notice Securities, if prior to the Company if any of the following has occurred: such time (i) trading in the Company's Common Stock shall have been suspended by the Commission or the National Association of Securities Dealers Automated Quotation National Market or trading in securities generally on the New York Stock Exchange or the National Association of Securities Dealers Automated Quotation National Market shall have been suspended or limited or minimum prices shall have been established on such Exchange or National Market, (ii) a banking moratorium shall have been declared either by Federal or New York State authorities or (iii) there shall have occurred any outbreak or escalation of hostilities hostilities, declaration by the United States of a national emergency or war or other national or international calamity or crisis or change in economic conditions or in the effect of which on financial markets of the United States or elsewhere that, in your judgment, is material and adverse and would, in your judgment, such as to make it impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus, or (ii) the suspension or material limitation of trading in securities on the New York Stock Exchange, the American Stock Exchange or the Nasdaq National Market or limitation on prices for securities on any such exchange or the Nasdaq National Market or (iii) the declaration of a banking moratorium by either federal or New York State authorities. 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 number 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 number of Securities to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severallyit, in the proportion which judgment of the number Representatives, impracticable or inadvisable to proceed with the offering or delivery of Securities set forth opposite its name in Annex I bears to the total number of Securities 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 Securities which such defaulting Underwriter or Underwriters, as contemplated by 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 Underwriter has agreed to purchase pursuant to Section 2 hereof be increased pursuant to this Section 9 by an amount in excess of one-ninth of such number of Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs is more than one-tenth of the 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 Agreement will terminate without liability on the part Prospectus (exclusive of any non-defaulting Underwriter or the Company. 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 effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of any such Underwriter under this Agreementsupplement thereto).
Appears in 1 contract
Effective Date of Agreement and Termination. This (a) If the Registration Statement has not been declared effective prior to the date of this Agreement, this Agreement shall become effective upon the later of (i) execution of this Agreementat such time, (ii) when after notification of the effectiveness of the Registration Statement has been released by the Commission Commission, as the Representative and the Company shall agree upon the public offering price and other terms and the purchase price of the Stock. If the public offering price and other terms and the purchase price of the Stock shall not have been determined prior to 5:00 p.m., New York time, on the third full business day after the Registration Statement has become effective, this Agreement shall thereupon terminate without liability on the part of the Company and the Selling Shareholders to the Underwriters (iii) if a post-except as provided in Section 4 or Section 7 of this Agreement). By giving notice before the time this Agreement becomes effective, the Representative, as Representative of the several Underwriters, may prevent this Agreement from becoming effective amendment without liability of any party to the other party, except that the Company shall remain obligated to pay costs and expenses to the extent provided in Section 4 and Section 7 of this Agreement. If the Registration Statement has been filed (including any post-declared effective amendment required prior 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)date of this Agreement, this Agreement shall become effective upon execution and delivery by the Representative, the effectiveness of such post-effective amendment or new or additional registration statement. Until this Company and the Selling Shareholders.
(b) This Agreement becomes effective as aforesaid, it may be terminated by the Representative in its absolute discretion by giving written notice to the Company by notifying and the Underwriters or by the Underwriters by notifying the Company. This Agreement may be terminated Selling Shareholders at any time after it becomes effective and on or prior to the Closing Date by you by written notice or, with respect to the Company purchase of the Option Stock, on or prior to any later date on which the Option Stock is to be purchased, as the case may be, if prior to such time any of the following has occurredoccurred or, in the Representative's opinion, is likely to occur: (i) after the respective dates as of which information is given in the Registration Statement and the Prospectus, any outbreak material change or escalation of hostilities or other national or international calamity or crisis or development involving a prospective adverse change in economic conditions or in affecting the business, properties, condition (financial markets or otherwise), results of operations or prospects of the United States or elsewhere thatCompany and its subsidiaries taken as a whole, in your judgment, is material and adverse and which would, in your the Representative's sole judgment, make it the offering or the delivery of the Stock impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus, or inadvisable; or (ii) the suspension or material limitation of if trading in securities of the Company has been suspended by the Commission or if trading generally on the New York Stock Exchange, the American Stock Exchange or the Nasdaq National Market over-the-counter market has been suspended or limitation on minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities on any have been required, by either of such exchange exchanges, by the NASD or by the Nasdaq National Market Commission; or (iii) if there shall have 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, court, legislative body, agency or other governmental authority which in the Representative's sole judgment materially affects or may materially affect the business, properties, condition (financial or otherwise), results of operations or prospects of the Company and its subsidiaries taken as a whole; (iv) if there shall have been the declaration of a banking moratorium by either federal federal, New York, California or New York State Washington authorities. If on the Closing Date, any one or more of the Underwriters ; (v) existing international monetary conditions 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, as 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 severallyundergone a material change which, in the proportion Representative's sole judgment, makes the offering or delivery of the Stock impracticable or inadvisable; or (vi) if there has occurred any material change in the financial markets in the United States or internationally or any outbreak of hostilities or escalation of existing hostilities or other crisis, the effect of which in the number Representative's sole judgment make the offering or delivery of Securities set forth opposite its name in Annex I bears to the total number of Securities which all the non-defaulting Underwriters, as the case may be, have agreed to purchase, Stock impracticable or 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 inadvisable. If this Agreement shall the number of Securities which any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased terminated pursuant to this Section 9 by an amount in excess of one-ninth of such number of Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters 9, there shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs is more than one-tenth be no liability of the 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 Agreement will terminate without liability on the part of any non-defaulting Underwriter or the Company. In any such case which does not result in termination Selling Shareholders to the Underwriters (except pursuant to Section 4 and Section 7 of this Agreement, either you ) and no liability of the Underwriters to the Company or the Company shall have the right Selling Shareholders (except pursuant 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 effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect Section 7 of any default of any such Underwriter under this Agreement).
Appears in 1 contract
Effective Date of Agreement and Termination. This (a) If the Registration Statement has not been declared effective prior to the date of this Agreement, this Agreement shall become effective upon the later of (i) execution of this Agreementat such time, (ii) when after notification of the effectiveness of the Registration Statement has been released by the Commission Commission, as you and the Company shall agree upon the public offering price and the purchase price of the Shares. If the public offering price and the purchase price of the Shares shall not have been determined prior to 2:00 p.m., San Francisco time, on the fifth full business day after the Registration Statement has become effective, this Agreement shall thereupon terminate without liability on the part of the Company to the Underwriters (iiiexcept as provided in Section 4 or Section 7 of this Agreement) if a post-or the Underwriters to the Company (except as set forth in Section 7 of this Agreement). By giving notice before the time this Agreement becomes effective, you, as Representative of the several Underwriters, may prevent this Agreement from becoming effective amendment without liability of any party to the other party, except that the Company shall remain obligated to pay costs and expenses to the extent provided in Section 4 and Section 7 of this Agreement. If the Registration Statement has been filed (including any post-declared effective amendment required prior 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)date of this Agreement, the effectiveness of such post-effective amendment or new or additional registration statement. Until this Agreement becomes shall become effective as aforesaid, it may be terminated upon execution and delivery by the Company by notifying the Underwriters or by the Underwriters by notifying you and the Company. .
(b) This Agreement may be terminated by you in your absolute discretion by giving written notice to the Company at any time after it becomes effective and on or prior to the Closing Date by you by written notice or, with respect to the Company purchase of the Option Shares, on or prior to any later date on which the Option Shares are to be purchased, as the case may be, if prior to such time any of the following has occurred: (i) the Company shall have failed, refused or been unable to perform any agreement on its part to be performed, or because any other condition of the Underwriters' obligations hereunder required to be fulfilled is not fulfilled, including, without limitation, after the respective dates as of which information is given in the Registration Statement and the Prospectus, any material adverse change or development involving a prospective adverse change in or affecting particularly the business, properties, condition (financial or otherwise), results of operations or prospects of the Company and the Subsidiary considered as one enterprise, whether or not arising in the ordinary course of business, occurs which would, in your reasonable judgment, make the offering or the delivery of the Shares impracticable or inadvisable; or (ii) there shall have been the engagement in hostilities or an escalation of major hostilities by the United States or the declaration of war or a national emergency by the United States on or after the date hereof, or any outbreak or escalation of hostilities or other national or international calamity or crisis or change in economic or political conditions, if the effect of such outbreak, calamity, crisis or change in economic or political conditions or in on the financial markets of the United States or elsewhere that, in your judgment, is material and adverse and would, in your reasonable judgment, make it the offering or delivery of the Shares impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus, or inadvisable; or (iiiii) the there shall have been suspension or material limitation of trading in securities generally or a material adverse decline in value of securities generally on the New York Stock Exchange, the American Stock Exchange or Exchange, the Nasdaq National Market or limitation limitations on prices (other than limitations on hours or numbers of days of trading) for securities on any either such exchange or the Nasdaq National Market system; or (iiiiv) there shall have 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 reasonable judgment materially and adversely affects or may materially and adversely affect the business, properties, condition (financial or other otherwise), results of operations or prospects of the Company; or (v) there shall have been the declaration of a banking moratorium by either federal or federal, New York State or California state authorities; or (vi) there shall have been 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 reasonable judgment, has or is likely to have a material adverse effect on the securities markets in the United States; or (vii) the Company shall have sustained a loss by strike, fire, flood, earthquake, accident or other calamity of such character as to interfere materially with the conduct of the business and operations of the Company regardless of whether or not such loss shall have been insured. In the event of termination pursuant to subparagraph (i) above because of any intentional or willful failure, refusal or inability on the party of the Company or the Sole Stockholder to perform any agreement herein or to comply with any provisions herein, other than by reason of a default by any of the Underwriters, the Company shall remain obligated to pay costs and expenses pursuant to Sections 4 and 7. 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 number 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 number of Securities to be purchased on such date by all Underwriters, each non-defaulting Underwriter this Agreement shall be obligated severally, in the proportion which the number of Securities set forth opposite its name in Annex I bears to the total number of Securities 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 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 Securities which any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased terminated pursuant to this Section 9 by an amount in excess of one-ninth of such number of Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters 9, there shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs is more than one-tenth be no liability of the aggregate number of Securities Company to be purchased on such date by all the Underwriters (except pursuant to Section 4 and arrangements satisfactory to you and the Company for purchase of such Securities are not made within 48 hours after such default, this Agreement will terminate without liability on the part of any non-defaulting Underwriter or the Company. In any such case which does not result in termination Section 7 of this Agreement, either you or ) and no liability of the Underwriters to the Company shall have (except to the right to postpone the Closing Date, but extent provided 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. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect Section 7 of any default of any such Underwriter under this Agreement).
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement shall become effective upon the later of at such time (i) execution of this Agreement, (ii) when after notification of the effectiveness of the Registration Statement has been released by the Commission Commission) as the International Underwriters, the Selling Stockholders and (iii) if a post-effective amendment the Company shall agree on the initial public offering price and underwriting discount per share, unless prior to such time such of the Underwriters as have agreed to purchase in the aggregate 50% or more of the Securities shall have given notice to the Registration Statement has been filed (including any post-Company that such International Underwriters elect that this Agreement and the U.S. Underwriting Agreement shall not become effective; provided, however, that the provisions of this Section 10 and of Section 8 hereof shall at all times be effective. If this Agreement shall not have become effective amendment required prior 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 2:00 PM, California time, on the Act)seventh full business day after the Effective Date, this Agreement shall not thereafter become effective unless such period is extended by agreement among the International Underwriters, 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 Selling Stockholders and the Company. This Agreement may shall be terminated subject to termination in the absolute discretion of the International Representatives, by notice given to the Company prior to delivery of and payment for the International Securities, if at any time 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: such time (i) any outbreak or escalation of hostilities or other national or international calamity or crisis or change in economic conditions or trading in the financial markets of Company's Common Stock shall have been suspended by the United States Commission or elsewhere that, in your judgment, is material and adverse and would, in your judgment, make it impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus, Nasdaq National Market or (ii) the suspension or material limitation of trading in securities generally on the New York Stock Exchange, the American Stock Exchange or the Nasdaq National Market shall have been suspended or limitation limited or minimum prices shall have been established on prices for securities on any such exchange Exchange or the Nasdaq National Market Market, (ii) a banking moratorium shall have been declared either by Federal or New York State authorities or (iii) there shall have occurred any outbreak or escalation of hostilities, declaration by the declaration United States of a banking moratorium by either federal national emergency or New York State authorities. If war or other calamity or crisis the effect of which on the Closing Date, any one or more of the Underwriters shall fail or refuse financial markets is such as 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, as 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 severallymake it, in the proportion which reasonable judgment of the number International Representatives, impractical or inadvisable to proceed with the offering or delivery of Securities set forth opposite its name in Annex I bears to the total number of Securities 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 Securities which such defaulting Underwriter or Underwriters, as contemplated by 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 Underwriter has agreed to purchase pursuant to Section 2 hereof be increased pursuant to this Section 9 by an amount in excess of one-ninth of such number of Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs is more than one-tenth of the 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 Agreement will terminate without liability on the part International Prospectus (exclusive of any non-defaulting Underwriter or the Company. 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 effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of any such Underwriter under this Agreementsupplement thereto).
Appears in 1 contract
Samples: International Underwriting Agreement (HMT Technology Corp)
Effective Date of Agreement and Termination. This Agreement shall become effective upon the later of at such time (i) execution of this Agreement, (ii) when after notification of the effectiveness of the Registration Statement has been released by the Commission Commission) as the Underwriters, the Selling Stockholders and (iii) if a post-effective amendment the Company shall agree on the initial public offering price and underwriting discount per share, unless prior to such time such of the Underwriters as have agreed to purchase in the aggregate 50% or more of the Securities shall have given notice to the Registration Statement has been filed (including any post-Company that such Underwriters elect that this Agreement and the International Underwriting Agreement shall not become effective; provided, however, that the provisions of this Section 10 and of Section 8 hereof shall at all times be effective. If this Agreement shall not have become effective amendment required prior 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 2:00 PM, California time, on the Act)seventh full business day after the Effective Date, this Agreement shall not thereafter become effective unless such period is extended by agreement among the Underwriters, 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 Selling Stockholders and the Company. This Agreement may shall be terminated subject to termination in the absolute discretion of the Representatives, by notice given to the Company prior to delivery of and payment for the Securities, if at any time 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: such time (i) any outbreak or escalation of hostilities or other national or international calamity or crisis or change in economic conditions or trading in the financial markets of Company's Common Stock shall have been suspended by the United States Commission or elsewhere that, in your judgment, is material and adverse and would, in your judgment, make it impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus, Nasdaq National Market or (ii) the suspension or material limitation of trading in securities generally on the New York Stock Exchange, the American Stock Exchange or the Nasdaq National Market shall have been suspended or limitation limited or minimum prices shall have been established on prices for securities on any such exchange Exchange or the Nasdaq National Market Market, (ii) a banking moratorium shall have been declared either by Federal or New York State authorities or (iii) there shall have occurred any outbreak or escalation of hostilities, declaration by the declaration United States of a banking moratorium by either federal national emergency or New York State authorities. If war or other calamity or crisis the effect of which on the Closing Date, any one or more of the Underwriters shall fail or refuse financial markets is such as 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, as 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 severallymake it, in the proportion which reasonable judgment of the number Representatives, impractical or inadvisable to proceed with the offering or delivery of Securities set forth opposite its name in Annex I bears to the total number of Securities 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 Securities which such defaulting Underwriter or Underwriters, as contemplated by 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 Underwriter has agreed to purchase pursuant to Section 2 hereof be increased pursuant to this Section 9 by an amount in excess of one-ninth of such number of Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs is more than one-tenth of the 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 Agreement will terminate without liability on the part Prospectus (exclusive of any non-defaulting Underwriter or the Company. 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 effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of any such Underwriter under this Agreementsupplement thereto).
Appears in 1 contract
Effective Date of Agreement and Termination. (a) This Agreement shall become effective upon the later of immediately as to Sections 6 and 9 and, as to all other provisions, (i) if at the time of execution of this Agreement the Registration Statement has not become effective, at 9:00 A.M. prevailing Eastern time, on the first full business day following the effectiveness of the Registration Statement, or (ii) if at the time of execution of this Agreement, (ii) when notification of the effectiveness of the Registration Statement has been released by declared effective, at 9:00 A.M. prevailing Eastern time on the Commission and (iii) if a post-first full business day following the date of execution of this Agreement; but this Agreement shall nevertheless become effective amendment to at such earlier time after the Registration Statement has been filed (including becomes effective as you may determine on and by notice to the Company or by release of any post-effective amendment required of the Shares for sale 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)public. For the purposes of this Section 11, the effectiveness Shares shall be deemed to have been so released upon the release for publication of such post-effective amendment any newspaper advertisement relating to the Shares or new upon the release by you of telegrams or additional registration statementfacsimile messages (i) advising the Underwriters that the Shares are released for public offering, or (ii) offering the Shares for sale to securities dealers, whichever may occur first. Until By giving notice before the time this Agreement becomes effective effective, you, as aforesaidthe Representatives of the several Underwriters, it or the Company, may be terminated by 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 6 hereof.
(b) You may terminate this Agreement by notifying notice to the Underwriters or by Company and the Underwriters by notifying the Company. This Agreement may be terminated Selling Stockholders at any time after it becomes effective and at or prior to the Closing Date by you by written notice to in accordance with the Company if any last paragraph of the following has occurred: Section 7 of this Agreement.
(ic) 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, If this Agreement is material and adverse and would, in your judgment, make it impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus, or (ii) the suspension or material limitation of trading in securities on the New York Stock Exchange, the American Stock Exchange or the Nasdaq National Market or limitation on prices for securities on any such exchange or the Nasdaq National Market or (iii) the declaration of a banking moratorium by either federal or New York State authorities. 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 number 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 number of Securities to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, in the proportion which the number of Securities set forth opposite its name in Annex I bears to the total number of Securities 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 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 Securities which any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased terminated pursuant to this Section 9 by an amount in excess of one-ninth of 11, such number of Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters termination shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs is more than one-tenth of the 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 Agreement will terminate without liability on the part of any non-defaulting Underwriter or the Company. In party to any other party, except that, notwithstanding any such case which does not result termination, (i) the provisions of Section 6 and Section 9 shall remain in termination of this Agreementeffect, either you or and (ii) if any Shares have been purchased hereunder, the Company representations and warranties in Section 1 and Section 2 and all obligations under Section 4 and Section 5 shall have the right to postpone the Closing Date, but also remain 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. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of any such Underwriter under this Agreementeffect.
Appears in 1 contract
Samples: Underwriting Agreement (Computer Programs & Systems Inc)
Effective Date of Agreement and Termination. (a) This Agreement shall become effective upon the later of immediately as to Sections 6 and 8 and, as to all other provisions, (i) if at the time of execution of this AgreementAgreement the Registration Statement has not become effective, (ii) when notification of at 10:00 a.m., on the first full business day following the effectiveness of the Registration Statement has been released by the Commission and Statement, or (iiiii) if a post-effective amendment to at the time of execution of this Agreement the Registration Statement has been filed (including declared effective, at 10:00 a.m. on the first full business day following the date of execution of this Agreement; but this Agreement shall nevertheless become effective at such earlier time after the Registration Statement becomes effective as you may determine on and by notice to the Company or by release of any post-effective amendment required of the Shares for sale 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)public. For the purposes of this Section 10, the effectiveness Shares shall be deemed to have been so released upon the release of such post-effective amendment publication of any newspaper advertisement relating to the Shares or new upon the release by you of telegrams (i) advising the Underwriters that the Shares are released for public offering, or additional registration statement(ii) offering the Shares for sale to securities dealers, whichever may occur first. Until By giving notice before the time this Agreement becomes effective effective, you, as aforesaidrepresentative of the several Underwriters, it or the Company, may be terminated by 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 6 hereof.
(b) You may terminate this Agreement, by notifying the Underwriters or by the Underwriters by notifying notice to the Company. This Agreement may be terminated , at any time after it becomes effective and at or prior to the Closing Date by you by written notice to the Company if any of the following has occurred: Time (i) in accordance with the last paragraph of Section 7 of this Agreement, or (ii) if there has been since the respective dates as of which information is given in the Registration Statement, any 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 escalation of hostilities or other national or international calamity or crisis or change in economic or political conditions or in the effect of which on the financial markets of the United States or elsewhere thatis such as to make it, in your judgment, is material and adverse and would, in your judgment, make it impracticable to market the Securities on Shares or enforce contracts for the terms and in sale of the manner contemplated in the ProspectusShares, or (iiiv) the suspension or material limitation of if trading in any securities of the Company has been suspended by the Commission or by the Nasdaq Stock Market or if trading generally on the New York Stock Exchange, the American Stock Exchange or in the Nasdaq National Market over-the-counter market has been suspended, or limitation limitations on prices for trading (other than limitations on hours or numbers of days of trading) have been fixed, or maximum ranges for prices for securities on any have been required, by such exchange or the Nasdaq National Market NASD or by order of the Commission or any other governmental authority, or (iiiv) if there has been any downgrading in the declaration rating of any of the Company's debt securities or preferred stock by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the 1933 Act), or (vi) if a banking moratorium has been declared by either federal or New York State or Tennessee authorities. If , or (vii) 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 (viii) any action has been taken by any federal, state or local government or agency in respect of its monetary or fiscal affairs which in your reasonable opinion has a material adverse effect 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 number 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 number of Securities to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, securities markets in the proportion which the number of Securities set forth opposite its name in Annex I bears to the total number of Securities 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 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 Securities which any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased United States.
(c) If this Agreement is terminated pursuant to this Section 9 by an amount in excess of one-ninth of 10, such number of Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters termination shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs is more than one-tenth of the 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 Agreement will terminate without liability on the part of any non-defaulting Underwriter or party to any other party, except to the Companyextent provided in Section 6. In Notwithstanding any such case which does not result termination, the provisions of Section 8 shall remain 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 effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of any such Underwriter under this Agreementeffect.
Appears in 1 contract
Samples: Underwriting Agreement (Netbank Inc)
Effective Date of Agreement and Termination. This Agreement shall become effective upon the later of (i) execution of this Agreement, Agreement and (ii) when oral notification of the effectiveness of the Registration Statement has been released by the Commission 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 CompanyCommission. This Agreement may be terminated at any time after it becomes effective and 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) since the respective dates as of which information is given in the Registration Statement and the Prospectus, except as disclosed in the Prospectus, any adverse change or development involving a prospective adverse change 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, make it impracticable to market the Shares on the terms and in the manner contemplated in the Prospectus, (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 to market the Securities Shares on the terms and in the manner contemplated in the Prospectus, or (iiiii) the suspension or material limitation of trading in securities on the New York Stock Exchange, the American Stock Exchange or the Nasdaq National Market or limitation on prices for securities on any such exchange or the Nasdaq National Market or (iii) the declaration of a banking moratorium by either federal or New York State authorities. 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 Securities Firm Shares or Additional Shares, as the case may be, which it or they have agreed to purchase hereunder on such date and the aggregate number of SecuritiesFirm 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 Securities 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 Securities Firm Shares set forth opposite its name in Annex Schedule I bears to the total number of Securities 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 Securities 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 Securities 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 Section 9 by an amount in excess of one-ninth of such number of Securities 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 fail or refuse to purchase Securities Firm Shares, or Additional Shares, as the case may be, and the aggregate number of Securities Firm Shares or Additional Shares, as the case may be, with respect to which such default occurs is more than one-tenth of the aggregate number of Securities Shares to be purchased on such date by all Underwriters and arrangements satisfactory to you and the Company for purchase of such Securities Shares are not made within 48 hours after such default, this Agreement will terminate without liability on the part of any non-defaulting Underwriter or and the CompanyCompany and the Selling Shareholder. In any such case which does not result in termination of this Agreement, either you you, the Company or the Company 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 effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of any such Underwriter under this Agreement.
Appears in 1 contract
Effective Date of Agreement and Termination. (a) This Agreement shall become effective upon the later of immediately as to Sections 6 and 9 and, as to all other provisions, (i) if at the time of execution of this Agreement the Registration Statement has not become effective, at 10:00 A.M. eastern time on the first full business day following the effectiveness of the Registration Statement, or (ii) if at the time of execution of this Agreement, (ii) when notification of the effectiveness of the Registration Statement has been released by declared effective, at 10:00 A.M. eastern time on the Commission and (iii) if a post-first full business day following the date of execution of this Agreement; but this Agreement shall nevertheless become effective amendment to at such earlier time after the Registration Statement has been filed (including becomes effective as you may determine on and by notice to the Company or by release of any post-effective amendment required of the Shares for sale 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)public. For the purposes of this Section 11, the effectiveness Shares shall be deemed to have been so released upon the release for publication of such post-effective amendment any newspaper advertisement relating to the Shares or new upon the release by you of telegrams or additional registration statementfacsimile messages (i) advising the Underwriters that the Shares are released for public offering, or (ii) offering the Shares for sale to securities dealers, whichever may occur first. Until By giving notice before the time this Agreement becomes effective effective, you, as aforesaidthe Representative of the several Underwriters, it or the Company, may be terminated by 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 6 hereof.
(b) You may terminate this Agreement by notifying notice to the Underwriters or by Company and the Underwriters by notifying the Company. This Agreement may be terminated Selling Stockholder at any time after it becomes effective and at or prior to the Closing Date by you by written notice to Time in accordance with the Company if any last paragraph of the following has occurred: Section 7 of this Agreement:
(i) if there has been, since the respective dates as of which information is given in the Registration Statement, any material adverse change, or any development which might reasonably be viewed as resulting in a material adverse change in or affecting the assets, properties, results of operation, financial condition or business prospects of the Company, whether or not arising in the ordinary course of business;
(ii) if there has occurred or accelerated any outbreak or escalation of hostilities or other national or international calamity or crisis or change in economic or political conditions or in the effect of which on the financial markets of the United States or elsewhere thatis such as to make it, in your judgment, is material and adverse and would, in your judgment, make it impracticable to market the Securities on Shares or enforce contracts for the terms and sale of the Shares;
(iii) if trading in any securities of the manner contemplated in Company has been suspended by the ProspectusCommission or by the NASD or NSM, or (ii) the suspension or material limitation of if trading in securities generally on the New York Stock Exchange, the American Stock Exchange or in the Nasdaq National Market over-the-counter market has been suspended, or limitation limitations on prices for trading (other than limitations on hours or numbers of days of trading) have been fixed, or maximum ranges for prices for securities on any have been required, by such exchange or the Nasdaq National Market NASD or by order of the Commission or any other governmental authority;
(iiiiv) the declaration of if a banking moratorium has been declared by either federal or New York State or Kentucky authorities. If ;
(v) 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
(vi) any action has been taken by any federal, state or local government or agency in respect of its monetary or fiscal affairs which in your reasonable opinion has a material adverse effect 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 number 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 number of Securities to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, securities markets in the proportion which the number of Securities set forth opposite its name in Annex I bears to the total number of Securities 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 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 Securities which any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased United States.
(c) If this Agreement is terminated pursuant to this Section 9 by an amount in excess of one-ninth of 11, such number of Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters termination shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs is more than one-tenth of the 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 Agreement will terminate without liability on the part of any non-defaulting Underwriter or party to any other party, except to the Companyextent provided in Section 6. In Notwithstanding any such case which does not result termination, the provisions of Section 9 shall remain 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 effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of any such Underwriter under this Agreementeffect.
Appears in 1 contract
Effective Date of Agreement and Termination. (a) This Agreement shall become effective upon the later of (i) if at the time of execution of this Agreement the Registration Statement has not become effective, at 10:00 A.M. eastern time on the first full business day following the effectiveness of the Registration Statement, or (ii) if at the time of execution of this Agreement, (ii) when notification of the effectiveness of the Registration Statement has been released by declared effective, at 10:00 A.M. eastern time on the Commission and (iii) if a post-first full business day following the date of execution of this Agreement; but this Agreement shall nevertheless become effective amendment to at such earlier time after the Registration Statement has been filed (including becomes effective as you may determine on and by notice to the Company or by release of any post-effective amendment required of the Shares for sale 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)public. For the purposes of this Section 10, the effectiveness Shares shall be deemed to have been so released upon the release for publication of such post-effective amendment any newspaper advertisement relating to the Shares or new upon the release by you of telegrams or additional registration statementfacsimile messages (i) advising the Underwriters that the Shares are released for public offering, or (ii) offering the Shares for sale to securities dealers, whichever may occur first. Until By giving notice before the time this Agreement becomes effective effective, you, as aforesaidthe Representatives of the several Underwriters, it or the Company, may be terminated by 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 Sections 5(i) and 10(d) hereof.
(b) You may terminate this Agreement by notifying notice to the Underwriters or by the Underwriters by notifying the Company. This Agreement may be terminated Company at any time after it becomes effective and at or prior to the Closing Date by you by written notice to the Company if any of the following has occurred: (i) in accordance with the last paragraph of Section 6 of this Agreement; or (ii) if there has been, since the respective dates as of which information is given in the Registration Statement, any material adverse change, or any development which might reasonably be viewed as resulting in a material adverse change in or affecting the assets, properties, results of operation, financial condition or business prospects of the Company and the Subsidiaries taken as a whole, whether or not arising in the ordinary course of business; or (iii) if there has occurred or accelerated any outbreak or escalation of hostilities or other national or international calamity or crisis or change in economic or political conditions or in the effect of which on the financial markets of the United States or elsewhere thatis such as to make it, in your judgment, is material and adverse and would, in your judgment, make it impracticable to market the Securities Shares or enforce contracts for the sale of the Shares; or (iv) if trading in any securities of the Company has been suspended by the Commission or by the NASD or the AMEX, or if trading generally on the terms and AMEX or in the manner contemplated in the Prospectusover-the-counter market has been suspended, or (ii) the suspension or material limitation of trading in securities on the New York Stock Exchange, the American Stock Exchange or the Nasdaq National Market or limitation limitations on prices for trading (other than limitations on hours or numbers of days of trading) have been fixed, or maximum ranges for prices for securities on any have been required, by such exchange or the Nasdaq National Market NASD or by order of the Commission or any other governmental authority; or (iiiv) the declaration of if a banking moratorium has been declared by either federal or New York State or California authorities. If ; 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 and the Subsidiaries taken as a whole, or (vii) any action has been taken by any federal, state, provincial or local government or agency in respect of its monetary or fiscal affairs which in your reasonable opinion has a material adverse effect 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 number 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 number of Securities to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, securities markets in the proportion which the number of Securities set forth opposite its name in Annex I bears to the total number of Securities 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 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 Securities which any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased United States.
(c) If this Agreement is terminated pursuant to this Section 9 by an amount 10, such termination shall be without liability of any party to any other party, except to the extent provided in excess Sections 5(i) and 10(d). Notwithstanding any such termination, the provisions of one-ninth of such number of Securities without the written consent of such Underwriter. Section 8 shall remain in effect.
(d) If on the Closing Date this Agreement shall be terminated pursuant to any Underwriter or Underwriters shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs is more than one-tenth of the aggregate number provisions hereof, or if the sale of Securities the Shares provided for herein is not consummated because any condition to be purchased on such date by all the obligations of the Underwriters and arrangements satisfactory to you and the Company for purchase set forth herein is not satisfied or because of such Securities are not made within 48 hours after such defaultany refusal, this Agreement will terminate without liability inability or failure on the part of any non-defaulting Underwriter or the Company. 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 perform any agreement herein or to comply with any provision hereof (other 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. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect by reason of any a default of any such Underwriter under this Agreementthe Underwriters), the Company agrees, subject to demand by you, to reimburse the Underwriters for all reasonable out-of-pocket expenses (including the reasonable fees and expenses of counsel to the Underwriters), incurred by the Underwriters in connection herewith.
Appears in 1 contract
Samples: Underwriting Agreement (Peace Arch Entertainment Group Inc)
Effective Date of Agreement and Termination. This (a) If the Registration Statement has not been declared effective prior to the date of this Agreement, this Agreement shall become effective upon the later of (i) execution of this Agreementat such time, (ii) when after notification of the effectiveness of the Registration Statement has been released by the Commission Commission, as you shall release the Securities to the public. If you shall not have released the Securities prior to 5:00 p.m., California time, on the fifth full business day after the Registration Statement shall have become effective, this Agreement shall thereupon terminate without liability on the part of the Underwriters to the Company, except as set forth in Section 7 of this Agreement. By giving notice as set forth in Section 10 of this Agreement before the time this Agreement becomes effective, you, as Representative of the several Underwriters, may prevent this Agreement from becoming effective without liability of any party to the other party, except that the Company shall remain obligated to pay costs and (iii) if a post-effective amendment expenses to the extent provided in Section 4 and Section 7 of this Agreement. If the Registration Statement has been filed (including any post-declared effective amendment required prior 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)date of this Agreement, the effectiveness of such post-effective amendment or new or additional registration statement. Until this Agreement becomes shall become effective as aforesaid, it may be terminated upon execution and delivery by the Company by notifying the Underwriters or by the Underwriters by notifying you and the Company. .
(b) This Agreement may be terminated by you in your absolute discretion by giving written notice to the Company at any time after it becomes effective and on or prior to the Closing Date by you by written notice or, with respect to the Company purchase of the Option Securities, on or prior to any later date on which the Option Securities are to be purchased, 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, any material adverse change or development involving a prospective adverse change in or affecting particularly the condition (financial or otherwise) of the Company or any of its subsidiaries or the earnings, prospects or business affairs of the Company or any of its subsidiaries, whether or not arising in the ordinary course of business, which would, in your sole judgment, make the offering or the delivery of the Securities impracticable or inadvisable; or (ii) if there shall have been the engagement in hostilities or an escalation of major hostilities by the United States or the declaration of war or a national emergency by the United States on or after the date hereof, or any outbreak or escalation of hostilities or other national or international calamity or crisis or change in economic or political conditions, if the effect of such outbreak, calamity, crisis or change in economic or political conditions or in on 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 to market the Securities on the terms and in the manner contemplated in the Prospectus, or (ii) the suspension or material limitation of trading in securities on the New York Stock Exchange, the American Stock Exchange or the Nasdaq National Market or limitation on prices for securities on any such exchange or the Nasdaq National Market or (iii) the declaration of a banking moratorium by either federal or New York State authorities. 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 number 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 number of Securities to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, in the proportion which the number of Securities set forth opposite its name in Annex I bears to the total number of Securities 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 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 Securities which any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased pursuant to this Section 9 by an amount in excess of one-ninth of such number of Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs is more than one-tenth of the 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 Agreement will terminate without liability on the part of any non-defaulting Underwriter or the Company. 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 effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of any such Underwriter under this Agreement.sole
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement ------------------------------------------- shall become effective upon the later of at such time (i) execution of this Agreement, (ii) when after notification of the effectiveness of the Registration Statement has been released by the Commission Commission) as the Representatives and (iii) if a post-effective amendment the Company shall agree on the initial public offering price and underwriting discount per share, unless prior to such time such of the Underwriters as have agreed to purchase in the aggregate 50% or more of the Securities shall have given notice 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 Company that such post-effective amendment or new or additional registration statement. Until Underwriters elect that this Agreement becomes shall not become effective; provided, however, that the provisions of this Section 10 and of Section 8 hereof shall at all times be effective. If this Agreement shall not have become effective as aforesaidprior to 5:00 p.m., it may be terminated New York City time, on the seventh full business day after the Effective Date, this Agreement shall not thereafter become effective unless such period is extended by the Company by notifying agreement among the Underwriters or by the Underwriters by notifying and the Company. This Agreement may shall be terminated at any time after it becomes effective and prior subject to termination in the Closing Date absolute discretion of the Representatives, by you by written notice given to the Company prior to delivery of and payment for the Securities, if any of the following has occurred: prior to such time (i) any outbreak or escalation of hostilities or other national or international calamity or crisis or change in economic conditions or trading in the financial markets of Company's Common Stock shall have been suspended from quotation by the United States Commission or elsewhere that, in your judgment, is material and adverse and would, in your judgment, make it impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus, Nasdaq National Market or (ii) the suspension or material limitation of trading in securities generally on the New York Stock Exchange, the American Stock Exchange or the Nasdaq National Market shall have been suspended or limitation limited or minimum prices shall have been established on prices for securities on any either of such exchange Exchanges or the Nasdaq National Market or System, (iiiii) the declaration of a banking moratorium shall have been declared either by either federal or New York State authorities. If authorities or (iii) there shall have occurred any outbreak or escalation of hostilities, declaration by the United States of a national emergency or war or other calamity or crisis the effect of which on the Closing Date, any one or more of the Underwriters shall fail or refuse financial markets is such as 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, as 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 severallymake it, in the proportion which judgment of the number Representatives, impracticable or inadvisable to proceed with the offering or delivery of Securities set forth opposite its name in Annex I bears to the total number of Securities 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 Securities which such defaulting Underwriter or Underwriters, as contemplated by 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 Underwriter has agreed to purchase pursuant to Section 2 hereof be increased pursuant to this Section 9 by an amount in excess of one-ninth of such number of Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs is more than one-tenth of the 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 Agreement will terminate without liability on the part Prospectus (exclusive of any non-defaulting Underwriter or the Company. 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 effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of any such Underwriter under this Agreementsupplement thereto).
Appears in 1 contract
Samples: Underwriting Agreement (Netsource Communications Inc)
Effective Date of Agreement and Termination. This (a) If the Registration Statement has not been declared effective prior to the date of this Agreement, this Agreement shall become effective upon the later of (i) execution of this Agreementat such time, (ii) when after notification of the effectiveness of the Registration Statement has been released by the Commission Commission, as the Representatives and the Company shall agree upon the public offering price and the purchase price of the Shares. If the public offering price and the purchase price of the Shares shall not have been determined prior to 5:00 p.m., New York time, on the fifth full business day after the Registration Statement has become effective, this Agreement shall thereupon terminate without liability on the part of the Company to the Underwriters (iiiexcept as provided in Section 5 or Section 8 of this Agreement) if a post-or the Underwriters to the Company (except as set forth in Section 8 of this Agreement). By giving notice before the time this Agreement becomes effective, the Representatives may prevent this Agreement from becoming effective amendment without liability of any party to the other party, except that the Company shall remain obligated to pay costs and expenses to the extent provided in Section 5 and Section 8 of this Agreement. If the Registration Statement has been filed (including any post-declared effective amendment required prior 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)date of this Agreement, this Agreement shall become effective upon execution and delivery by the Representatives, the effectiveness of such post-effective amendment or new or additional registration statement. Until this Company and the Attorneys.
(b) This Agreement becomes effective as aforesaid, it may be terminated by the Representatives in their absolute discretion by giving written notice to the Company by notifying the Underwriters or by the Underwriters by notifying the Company. This Agreement may be terminated at any time after it becomes effective and on or prior to the Closing Date by you by written notice or, with respect to the Company purchase of the Option Shares, on or prior to any later date on which the Option Shares are to be purchased, as the case may be, if prior to such time any of the following has occurredoccurred or, in the Representatives' opinion, is likely to occur: (i) after the respective dates as of which information is given in the Registration Statement and the Prospectus, any material adverse change or development involving a prospective adverse change in or affecting particularly the business, properties, condition (financial or otherwise), results of operations or prospects of the Company and its direct and indirect subsidiaries, taken as a whole, whether or not arising in the ordinary course of business, occurs which would, in the Representatives' sole judgment, make the offering or the delivery of the Shares impracticable or inadvisable; or (ii) if there shall have been the engagement in hostilities or an escalation of major hostilities by the United States or the declaration of war or a national emergency by the United States on or after the date hereof, or any outbreak or escalation of hostilities or other national or international calamity or crisis or change in economic or political conditions, if the effect of such outbreak, calamity, crisis or change in economic or political conditions or in on the financial markets of the United States or elsewhere that, in your judgment, is material and adverse and would, in your the Representatives' sole judgment, make it the offering or delivery of the Shares impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus, or inadvisable; or (iiiii) the if there shall have been suspension or material limitation of trading in securities generally or a material adverse decline in value of securities generally on the New York Stock Exchange, the American Stock Exchange or Exchange, the Nasdaq National Market Market, or limitation limitations on prices (other than limitations on hours or numbers of days of trading) for securities on any either such exchange or the Nasdaq National Market system; or (iiiiv) if there shall have 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 the Representatives' sole judgment has or may have a Consolidated Material Adverse Effect; or (v) if there shall have been the declaration of a banking moratorium by either federal or federal, New York State or California state authorities; or (vi) if there shall have been the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs which in the Representatives' sole judgment has a material adverse effect on the securities markets in the United States; or (vii) existing international monetary conditions shall have undergone a material change which, in your sole judgment, makes the offering or delivery of the Shares impracticable or inadvisable. 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 number 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 number of Securities to be purchased on such date by all Underwriters, each non-defaulting Underwriter this Agreement shall be obligated severally, in the proportion which the number of Securities set forth opposite its name in Annex I bears to the total number of Securities 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 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 Securities which any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased terminated pursuant to this Section 9 by an amount in excess of one-ninth of such number of Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters 10, there shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs is more than one-tenth be no liability of the 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 Agreement will terminate without liability on the part of any non-defaulting Underwriter or the Company. In any such case which does not result in termination Selling Stockholders to the Underwriters (except pursuant to Section 5 and Section 8 of this Agreement, either you ) and no liability of the Underwriters to the Company or the Company shall have Selling Stockholders (except to the right to postpone the Closing Date, but extent provided 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. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect Section 8 of any default of any such Underwriter under this Agreement).
Appears in 1 contract
Effective Date of Agreement and Termination. a. This Agreement shall become effective upon the later of immediately as to Sections 7 and 9 and, as to all other provisions, (i) if at the time of execution of this AgreementAgreement the Registration Statement has not become effective, (ii) when notification of at 10:00 a.m. New York, New York time, on the first full business day following the effectiveness of the Registration Statement has been released by the Commission and Statement, or (iiiii) if a post-effective amendment to at the time of execution of this Agreement 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 declared effective, at 10:00 a.m. New York, New York time on the Act), first full business day following the effectiveness date of such post-effective amendment or new or additional registration statement. Until execution of this Agreement; but this Agreement becomes shall nevertheless become effective as aforesaidat such earlier time
b. You may terminate this Agreement, it may be terminated by the Company by notifying the Underwriters or by the Underwriters by notifying notice to the Company. This Agreement may be terminated , at any time after it becomes effective and at or prior to the Closing Date by you by written notice to the Company if any of the following has occurred: Time (i) in accordance with the penultimate paragraph of Section 8 of this Agreement, or (ii) if there has been since the respective dates as of which information is given in the Registration Statement, any 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 escalation of hostilities or other national or international calamity or crisis or change in economic or political conditions or in the effect of which on the financial markets of the United States or elsewhere thatis such as to make it, in your judgment, is material and adverse and would, in your judgment, make it impracticable to market the Securities on Shares or enforce contracts for the terms and in sale of the manner contemplated in the ProspectusShares, or (iiiv) the suspension or material limitation of if trading in any securities of the Company has been suspended by the Commission or by the Nasdaq National Market or if trading generally on the New York Stock Exchange, the American Stock Exchange or in the Nasdaq National Market over-the-counter market has been suspended, or limitation limitations on prices for trading (other than limitations on hours or numbers of days of trading) have been fixed, or maximum ranges for prices for securities on any have been required, by such exchange or the Nasdaq National Market NASD or by order of the Commission or any other governmental authority, or (iiiv) if there has been any downgrading in the declaration rating of any of the Company's debt securities or preferred stock by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) of the 1933 Act Regulations), or (vi) if a banking moratorium has been declared by either federal or New York State or Tennessee authorities. If , or (vii) 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 (viii) any action has been taken by any federal, state or local government or agency in respect of its monetary or fiscal affairs which in your reasonable opinion has a material adverse effect on the Closing Datesecurities markets in the United States.
c. If this Agreement is terminated pursuant to this Section 11, such termination shall be without liability of any one or more party to any other party, except to the extent provided in Section 7. Notwithstanding any such termination, the provisions of the Underwriters Section 9 shall fail or refuse to purchase the Securities which it or they have agreed to purchase hereunder on such date and remain in effect.
a. If the aggregate number of Securities, Firm Shares which such defaulting Underwriter or Underwriters, as the case may be, agreed but failed or refused to purchase is are Defaulted Securities does 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 proportion which the number of Securities set forth opposite its name in Annex I bears to the total number of Securities 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 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 Securities which any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased pursuant to this Section 9 by an amount in excess of one-ninth of such number of Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs is more than one-tenth exceed 10% of the aggregate number of Securities Firm Shares to be purchased on such date by pursuant to this Agreement, the non-defaulting Underwriters shall be obligated to purchase the full amount thereof in the proportions that their respective underwriting obligation proportions bear to the underwriting obligations of all Underwriters and arrangements satisfactory non-defaulting Underwriters; and
b. If the aggregate number of Firm Shares which are Defaulted Securities exceeds 10% of the aggregate number of Firm Shares to you and the Company for purchase of such Securities are not made within 48 hours after such defaultbe purchased pursuant to this Agreement, this Agreement will shall terminate without liability on the part of any non-defaulting Underwriter. No action taken pursuant to this Section 12 shall relieve any defaulting Underwriter or the Companyfrom liability in respect of its default. In the event of any such case which default that does not result in a termination of this Agreement, either you or the Company shall have the right to postpone the Closing Date, but in no event Time for longer than a period not exceeding seven days, days in order that the to effect any required changes, if any, changes in the Registration Statement and the or Prospectus or in any other documents or arrangements arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus that may thereby be effectedmade necessary. Any action taken under As used in this paragraph shall not relieve Agreement, the term "Underwriter" includes any defaulting Underwriter from liability in respect of any default of any such person substituted for an Underwriter under this AgreementSection 12.
Appears in 1 contract
Effective Date of Agreement and Termination. This (A) If the Registration Statement has not been declared effective prior to the date of this Agreement, this Agreement shall become effective upon the later of (i) execution of this Agreementat such time, (ii) when after notification of the effectiveness of the Registration Statement has been released by the Commission Commission, as the Representatives and the Company shall agree upon the public offering price and other terms and the purchase price of the Shares. If the public offering price and other terms and the purchase price of the Shares shall not have been determined prior to 5:00 p.m., New York time, on the third full business day after the Registration Statement has become effective, this Agreement shall thereupon terminate without liability on the part of the Company or any Selling Stockholder to the Underwriters (iii) if a post-except as provided in Section 4 or Section 7 of this Agreement). By giving notice before the time this Agreement becomes effective, the Representatives, as Representatives of the several Underwriters, may prevent this Agreement from becoming effective amendment without liability of any party to the other party, except that the Company and the Selling Stockholders shall remain obligated to pay costs and expenses to the extent provided in Section 4 and Section 7 of this Agreement. If the Registration Statement has been filed (including any post-declared effective amendment required prior 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)date of this Agreement, this Agreement shall become effective upon execution and delivery by the Representatives, the effectiveness of such postCompany and the Selling Stockholders (through their attorney-effective amendment or new or additional registration statement. Until this in-fact (the "ATTORNEY-IN-FACT")).
(B) This Agreement becomes effective as aforesaid, it may be terminated by the Company Representatives in its absolute discretion by notifying the Underwriters or by the Underwriters by notifying the Company. This Agreement may be terminated at any time after it becomes effective and prior to the Closing Date by you by giving written notice to the Company at any time on or prior to the First Closing Date or, with respect to the purchase of the Option Shares, by giving notice to the Company and the Attorney-In-Fact for the Selling Stockholders, on or prior to the Optional Closing Date, as the case may be, if prior to such time any of the following has occurredoccurred or, in the opinion of the Representatives, is likely to occur: (i) after the respective dates as of which information is given in the Registration Statement and the Prospectus, any outbreak material change or escalation of hostilities or other national or international calamity or crisis or development involving a prospective adverse change in economic conditions or in affecting the business, properties, condition (financial markets or otherwise), results of operations or prospects of the United States or elsewhere thatCompany and its subsidiaries taken as a whole, in your judgment, is material and adverse and which would, in your the Representatives' sole judgment, make it the offering or the delivery of the Shares impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus, or inadvisable; or (ii) the suspension or material limitation of trading in securities of the Company has been suspended by the Commission or if trading generally on the New York Stock Exchange, the American Stock Exchange or the Exchange, Nasdaq National Market or limitation on over-the-counter market has been suspended or minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities on any have been required, by either of such exchange exchanges, by the NASD or by the Nasdaq National Market Commission; or (iii) there shall have 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 the sole judgement of the Representatives, materially affects or may materially affect the business, properties, condition (financial or otherwise), results of operations or prospects of the Company and its subsidiaries taken as a whole; (iv) there shall have been the declaration of a banking moratorium by either federal or federal, New York State or California authorities. If on the Closing Date, any one or more of the Underwriters ; (v) existing international monetary conditions 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, as 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 severallyundergone a material change which, in the proportion which Representatives' sole judgment, makes the number of Securities set forth opposite its name in Annex I bears to the total number of Securities which all the non-defaulting Underwriters, as the case may be, have agreed to purchase, offering or 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 Securities which any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased pursuant to this Section 9 by an amount in excess of one-ninth of such number of Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs is more than one-tenth delivery of the aggregate number Shares impracticable or inadvisable; or (vi) there has occurred any material change in the financial markets in the United States or internationally or any outbreak of Securities to be purchased on such date by all Underwriters and arrangements satisfactory to you and hostilities or escalation of existing hostilities or other crisis, the Company for purchase effect of such Securities are not made within 48 hours after such default, this Agreement will terminate without liability on the part of any non-defaulting Underwriter or the Company. 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 anywhich, in the Registration Statement and reasonable judgement of the Prospectus or any other documents or arrangements may be effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of any such Underwriter under this Agreement.Representatives, makes the
Appears in 1 contract
Samples: Underwriting Agreement (Navidec Inc)
Effective Date of Agreement and Termination. This (a) If the Registration Statement has not been declared effective prior to the date of this Agreement, this Agreement shall become effective upon the later of (i) execution of this Agreementat such time, (ii) when after notification of the effectiveness of the Registration Statement has been released by the Commission Commission, as the Representatives and the Company shall agree upon the public offering price and the purchase price of the Shares. If the public offering price and the purchase price of the Shares shall not have been determined prior to 5:00 p.m., New York time, on the fifth full business day after the Registration Statement has become effective, this Agreement shall thereupon terminate without liability on the part of the Company or the Selling Shareholders to the Underwriters (iiiexcept as provided in Section 6 or Section 9 of this Agreement) if a post-or the Underwriters to the Company or the Selling Shareholders (except as set forth in Section 9 of this Agreement). By giving notice before the time this Agreement becomes effective, the Representatives may prevent this Agreement from becoming effective amendment without liability of any party to the other party, except that the Company shall remain obligated to pay costs and expenses to the extent provided in Section 6 and Section 9 of this Agreement. If the Registration Statement has been filed (including any post-declared effective amendment required prior 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)date of this Agreement, this Agreement shall become effective upon execution and delivery by the Representatives, the effectiveness of such post-effective amendment or new or additional registration statement. Until this Company and the Attorneys.
(b) This Agreement becomes effective as aforesaid, it may be terminated by the Representatives in their absolute discretion by giving written notice to the Company by notifying the Underwriters or by the Underwriters by notifying the Company. This Agreement may be terminated at any time after it becomes effective and on or prior to the Closing Date by you by written notice or, with respect to the Company purchase of the Option Shares, on or prior to any later date on which the Option Shares are to be purchased, as the case may be, if prior to such time any of the following has occurredoccurred or, in the Representatives' reasonable opinion, is likely to occur: (i) after the respective dates as of which information is given in the Registration Statement and the Prospectus, any Consolidated Material Adverse Effect or development involving a prospective Consolidated Material Adverse Effect in or affecting particularly the business, properties, condition (financial or otherwise), results of operations or prospects of the Company and its direct and indirect subsidiaries, taken as a whole, whether or not arising in the ordinary course of business, occurs which would, in the Representatives' reasonable judgment, make the offering or the delivery of the Shares impracticable or inadvisable; or (ii) if there shall have been the engagement in hostilities or an escalation of major hostilities by the United States or the declaration of war or a national emergency by the United States on or after the date hereof, or any outbreak or escalation of hostilities or other national or international calamity or crisis or change in economic or political conditions, if the effect of such outbreak, calamity, crisis or change in economic or political conditions or in on the financial markets of the United States or elsewhere that, in your judgment, is material and adverse and would, in your the Representatives' reasonable judgment, make it the offering or delivery of the Shares impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus, or inadvisable; or (iiiii) the if there shall have been suspension or material limitation of trading in securities generally or a material adverse decline in value of securities generally on the New York Stock Exchange, the American Stock Exchange or Exchange, the Nasdaq National Market Market, or limitation limitations on prices (other than limitations on hours or numbers of days of trading) for securities on any either such exchange or the Nasdaq National Market system; or (iiiiv) if there shall have 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 the Representatives' reasonable judgment has or may have a Consolidated Material Adverse Effect; or (v) if there shall have been the declaration of a banking moratorium by either federal or federal, New York State or California state authorities. If ; or (vi) if there shall have been the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs which in the Representatives' reasonable judgment has a material adverse effect on the Closing Date, any one securities markets in the United States; or more of the Underwriters (vii) existing international monetary conditions 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, as 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 severallyundergone a material adverse change which, in the proportion which Representatives reasonable judgment, makes the number offering or delivery of Securities set forth opposite its name in Annex I bears to the total number of Securities which all the non-defaulting Underwriters, as the case may be, have agreed to purchase, Shares impracticable or 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 inadvisable. If this Agreement shall the number of Securities which any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased terminated pursuant to this Section 9 by an amount in excess of one-ninth of such number of Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters 11, there shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs is more than one-tenth be no liability of the 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 Agreement will terminate without liability on the part of any non-defaulting Underwriter or the Company. In any such case which does not result in termination Selling Shareholders to the Underwriters (except pursuant to Section 6 and Section 9 of this Agreement, either you ) and no liability of the Underwriters to the Company or the Company shall have Selling Shareholders (except to the right to postpone the Closing Date, but extent provided 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. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect Section 9 of any default of any such Underwriter under this Agreement).
Appears in 1 contract
Effective Date of Agreement and Termination. (a) This Agreement shall become effective upon the later of immediately as to Sections 6 and 9 and, as to all other provisions, (i) if at the time of execution of this Agreement the Registration Statement has not become effective, at 10:00 A.M. eastern time on the first full business day following the effectiveness of the Registration Statement, or (ii) if at the time of execution of this Agreement, (ii) when notification of the effectiveness of the Registration Statement has been declared effective, at 10:00 A.M. eastern time on the first full business day following the date of execution of this Agreement; but this Agreement shall nevertheless become effective at such earlier time after the Registration Statement becomes effective as you may determine on and by notice to the Company or by release of any of the Shares for sale to the public. For the purposes of this Section 11, the Shares shall be deemed to have been so released upon the release for publication of any newspaper advertisement relating to the Shares or upon the release by you of telegrams or facsimile messages (i) advising the Commission Underwriters that the Shares are released for public offering, or (ii) offering the Shares for sale to securities dealers, whichever may occur first. By giving notice before the time this Agreement becomes effective, you, as the Representative of the several Underwriters, or the Company, may 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 6 hereof.
(b) You may terminate this Agreement by notice to the Company and the Selling Shareholders at any time at or prior to the Closing Time (i) in accordance with the last paragraph of Section 7 of this Agreement; or (ii) if there has been, since the respective dates as of which information is given in the Registration Statement, any material adverse change, or any development which might reasonably be viewed as resulting in a material adverse change in or affecting the assets, properties, results of operation, financial condition or business prospects of the Company, whether or not arising in the ordinary course of business; or (iii) if a post-effective amendment to the Registration Statement there has been filed (including any post-effective amendment required to be filed pursuant to Rule 430A) occurred 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 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) accelerated any outbreak or escalation of hostilities or other national or international calamity or crisis or change in economic or political conditions or in the effect of which on the financial markets of the United States or elsewhere thatis such as to make it, in your judgment, is material and adverse and would, in your judgment, make it impracticable to market the Securities on Shares or enforce contracts for the terms and sale of the Shares; or (iv) if trading in any securities of the manner contemplated in Company has been suspended by the ProspectusCommission or by the NASD or NSM, or (ii) the suspension or material limitation of if trading in securities generally on the New York Stock Exchange, the American Stock Exchange or in the Nasdaq National Market over-the-counter market has been suspended, or limitation limitations on prices for trading (other than limitations on hours or numbers of days of trading) have been fixed, or maximum ranges for prices for securities on any have been required, by such exchange or the Nasdaq National Market NASD or by order of the Commission or any other governmental authority; or (iiiv) the declaration of if a banking moratorium has been declared by either federal or New York State York, Tennessee or Utah authorities. If ; 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 which in your reasonable opinion has a material adverse effect 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 number 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 number of Securities to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, securities markets in the proportion which the number of Securities set forth opposite its name in Annex I bears to the total number of Securities 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 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 Securities which any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased United States.
(c) If this Agreement is terminated pursuant to this Section 9 by an amount in excess of one-ninth of 11, such number of Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters termination shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs is more than one-tenth of the 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 Agreement will terminate without liability on the part of any non-defaulting Underwriter or party to any other party, except to the Companyextent provided in Section 6. In Notwithstanding any such case which does not result termination, the provisions of Section 9 shall remain 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 effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of any such Underwriter under this Agreementeffect.
Appears in 1 contract
Samples: Underwriting Agreement (Motor Cargo Industries Inc)
Effective Date of Agreement and Termination. (a) This Agreement shall become effective upon the later of (i) if at the time of execution of this Agreement the Registration Statement has not become effective, at 10:00 A.M. eastern time on the first full business day following the effectiveness of the Registration Statement, or (ii) if at the time of execution of this Agreement, (ii) when notification of the effectiveness of the Registration Statement has been declared effective, at 10:00 A.M. eastern time on the first full business day following the date of execution of this Agreement; but this Agreement shall nevertheless become effective at such earlier time after the Registration Statement becomes effective as you may determine on and by notice to the Company or by release of any of the Shares for sale to the public. For the purposes of this Section 11, the Shares shall be deemed to have been so released upon the release for publication of any newspaper advertisement relating to the Shares or upon the release by you of telegrams or facsimile messages (i) advising the Commission Underwriters that the Shares are released for public offering, or (ii) offering the Shares for sale to securities dealers, whichever may occur first. By giving notice before the time this Agreement becomes effective, you, as the Representative of the several Underwriters, the Company or the Selling Shareholders, may prevent this Agreement from becoming effective, without liability of any party to any other party, except that the and the Selling Shareholders Company shall remain obligated to pay costs and expenses to the extent provided in Section 6 hereof.
(b) You may terminate this Agreement by notice to the Company and the Selling Shareholders at any time at or prior to the Closing Time (i) in accordance with the last paragraph of Section 7 of this Agreement; (ii) if there has been, since the respective dates as of which information is given in the Registration Statement, any material adverse change, or any development which might reasonably be viewed as resulting in a material adverse change in or affecting the assets, properties, results of operation, financial condition, or business prospects of the Company, whether or not arising in the ordinary course of business; (iii) if a post-effective amendment to the Registration Statement there has been filed (including any post-effective amendment required to be filed pursuant to Rule 430A) occurred 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 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) accelerated any outbreak or escalation of hostilities or other national or international calamity or crisis or change in economic or political conditions or in the effect of which on the financial markets of the United States or elsewhere thatis such as to make it, in your judgment, is material and adverse and would, in your judgment, make it impracticable to market the Securities on Shares or enforce contracts for the terms and sale of the Shares; (iv) if trading in any securities of the manner contemplated in Company has been suspended by the ProspectusCommission or by the NASD or NSM, or (ii) the suspension or material limitation of if trading in securities generally on the New York Stock Exchange, the American Stock Exchange or in the Nasdaq National Market over-the-counter market has been suspended, or limitation limitations on prices for trading (other than limitations on hours or numbers of days of trading) have been fixed, or maximum ranges for prices for securities on any have been required, by such exchange or the Nasdaq National Market NASD or by order of the Commission or any other governmental authority; (iiiv) the declaration of if a banking moratorium has been declared by either federal or New York State authorities. If ; (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 which in your reasonable opinion has a material adverse effect 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 number 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 number of Securities to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, securities markets in the proportion which the number of Securities set forth opposite its name in Annex I bears to the total number of Securities 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 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 Securities which any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased United States.
(c) If this Agreement is terminated pursuant to this Section 9 by an amount in excess of one-ninth of 11, such number of Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters termination shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs is more than one-tenth of the 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 Agreement will terminate without liability on the part of any non-defaulting Underwriter or party to any other party, except to the Companyextent provided in Section 6. In Notwithstanding any such case which does not result termination, the provisions of Section 9 shall remain 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 effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of any such Underwriter under this Agreementeffect.
Appears in 1 contract
Samples: Underwriting Agreement (Simon Transportation Services Inc)
Effective Date of Agreement and Termination. This (a) If the Registration Statement has not been declared effective prior to the date of this Agreement, this Agreement shall become effective upon the later of (i) execution of this Agreementat such time, (ii) when after notification of the effectiveness of the Registration Statement has been released by the Commission Commission, as the Representative and the Company shall agree upon the public offering price and the purchase price of the Shares. If the public offering price and the purchase price of the Shares shall not have been determined prior to 5:00 p.m., New York time, on the fifth full business day after the Registration Statement has become effective, this Agreement shall thereupon terminate without liability on the part of the Company to the Underwriters (iiiexcept as provided in Section 4 or Section 7 of this Agreement) if a post-or the Underwriters to the Company (except as set forth in Section 7 of this Agreement). By giving notice before the time this Agreement becomes effective, the Representative may prevent this Agreement from becoming effective amendment without liability of any party to the other party, except that the Company shall remain obligated to pay costs and expenses to the extent provided in Section 4 and Section 7 of this Agreement. If the Registration Statement has been filed (including any post-declared effective amendment required prior 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)date of this Agreement, this Agreement shall become effective upon execution and delivery by the Representative, the effectiveness of such post-effective amendment or new or additional registration statement. Until this Company and the Attorneys.
(b) This Agreement becomes effective as aforesaid, it may be terminated by the Representative in its absolute discretion by giving written notice to the Company by notifying the Underwriters or by the Underwriters by notifying the Company. This Agreement may be terminated at any time after it becomes effective and on or prior to the Closing Date by you by written notice or, with respect to the Company purchase of the Option Shares, on or prior to any later date on which the Option Shares are to be purchased, as the case may be, if prior to such time any of the following has occurredoccurred or, in the Representative's reasonable opinion, is likely to occur: (i) after the respective dates as of which information is given in the Registration Statement and the Prospectus, any Consolidated Material Adverse Effect or development involving a prospective Consolidated Material Adverse Effect in or affecting particularly the business, properties, condition (financial or otherwise), results of operations or prospects of the Company and its direct and indirect subsidiaries, taken as a whole, whether or not arising in the ordinary course of business, occurs which would, in the Representative's reasonable judgment, make the offering or the delivery of the Shares impracticable or inadvisable; or (ii) if there shall have been the engagement in hostilities or an escalation of major hostilities by the United States or the declaration of war or a national emergency by the United States on or after the date hereof, or any outbreak or escalation of hostilities or other national or international calamity or crisis or change in economic or political conditions, if the effect of such outbreak, calamity, crisis or change in economic or political conditions or in on the financial markets of the United States or elsewhere that, in your judgment, is material and adverse and would, in your the Representative's reasonable judgment, make it the offering or delivery of the Shares impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus, or inadvisable; or (iiiii) the if there shall have been suspension or material limitation of trading in securities generally or a material adverse decline in value of securities generally on the New York Stock Exchange, the American Stock Exchange or Exchange, the Nasdaq National Market or limitation on over-the- counter market has been suspended, or minimum prices for trading have been fixed, or maximum ranges for prices for securities on any have been required, by either of such exchange exchanges, by the NASD or by the Nasdaq National Market Commission; or (iiiiv) if there shall have 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 the Representative's reasonable judgment has or may have a Consolidated Material Adverse Effect; or (v) if there shall have been the declaration of a banking moratorium by either federal or federal, New York State or California state authorities; or (vi) if there shall have been the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs which in the Representative's reasonable judgment has a material adverse effect on the securities markets in the United States; or (vii) existing international monetary conditions shall have undergone a material adverse change which, in your reasonable judgment, makes the offering or delivery of the Shares impracticable or inadvisable. 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 number 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 number of Securities to be purchased on such date by all Underwriters, each non-defaulting Underwriter this Agreement shall be obligated severally, in the proportion which the number of Securities set forth opposite its name in Annex I bears to the total number of Securities 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 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 Securities which any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased terminated pursuant to this Section 9 by an amount in excess of one-ninth of such number of Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters 9, there shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs is more than one-tenth be no liability of the aggregate number of Securities Company to be purchased on such date by all the Underwriters (except pursuant to Section 4 and arrangements satisfactory to you and the Company for purchase of such Securities are not made within 48 hours after such default, this Agreement will terminate without liability on the part of any non-defaulting Underwriter or the Company. In any such case which does not result in termination Section 7 of this Agreement, either you or ) and no liability of the Underwriters to the Company shall have (except to the right to postpone the Closing Date, but extent provided 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. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect Section 7 of any default of any such Underwriter under this Agreement).
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement shall become effective upon the later of (i) execution of this Agreement, (ii) when notification of the effectiveness of the Registration Statement has been released by the Commission immediately 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 only as follows:
(a) In the event that the minimum number of Shares are not sold by the Company by notifying the Underwriters or by the Underwriters by notifying the Company. Expiration Date as described in Section 4(a)(iv) hereof.
(b) This Agreement may be terminated at any time after it becomes effective and prior by BSFS by notice to the Closing Date Company in the event that the Company shall have failed or been unable to comply with any of the material terms, conditions or provisions of this Agreement on the part of the Company to be performed, complied with or fulfilled within the respective times herein provided for, unless compliance therewith or performance or satisfaction thereof shall have been expressly waived by you BSFS in writing.
(c) This Agreement may be terminated by written BSFS by notice to the Company if BSFS believes in its sole judgment that any adverse changes have occurred in the management of the following has occurred: Company, that material adverse changes have occurred in the financial condition, prospects or obligations of the Company or if the Company shall have sustained a loss by strike, fire, flood, accident or other calamity of such a character as, in the sole judgment of BSFS, may interfere materially with the conduct of the Company's business and operations regardless of whether or not such loss shall have been insured.
(d) This Agreement may be terminated by BSFS by notice to the Company at any time if, in the sole judgment of BSFS, payment for and delivery of the Shares is rendered impracticable or inadvisable because (i) any outbreak or escalation of hostilities or other national or international calamity or crisis or change additional material governmental restrictions not in economic conditions or in the financial markets of the United States or elsewhere that, in your judgment, is material force and adverse and would, in your judgment, make it impracticable to market the Securities effect on the terms and date hereof shall have been imposed upon the trading in securities generally, or minimum or maximum prices shall have been generally established on the manner contemplated New York or American Stock Exchange or the over-the-counter market, or trading in the Prospectussecurities generally on either such Exchange or over-the-counter market shall have been suspended, or a general moratorium shall have been established by federal or state authorities, or (ii) the suspension a war or material limitation of trading in securities on the New York Stock Exchangeother national calamity shall have occurred, the American Stock Exchange or the Nasdaq National Market or limitation on prices for securities on any such exchange or the Nasdaq National Market or (iii) substantial and material changes in the declaration of a banking moratorium by either federal or New York State authorities. If on the Closing Date, any one or more condition of the Underwriters shall fail market (either generally or refuse with reference 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, as the case may be, agreed but failed or refused to purchase is not more than one-tenth sale of the total number of Securities Shares to be purchased on offered hereby) beyond normal fluctuations are such date by all Underwritersthat it would be undesirable, each non-defaulting Underwriter impracticable or inadvisable in the sole judgment of BSFS to proceed with this Agreement or with the public offering, (iv) the DOC Order, the FDIC Order, or the Federal Reserve Board Approval shall have been withdrawn, rescinded, revoked or materially altered, or (v) of any matter materially adversely affecting the Company.
(e) In the event any action or proceeding shall be obligated severallyinstituted or threatened against BSFS, either in any court of competent jurisdiction, before the proportion which the number of Securities set forth opposite Commission or any state securities commission concerning its name in Annex I bears activities as a broker or dealer that would prevent BSFS from acting as such, at any time prior to the total number of Securities which all the non-defaulting Underwriters, as the case may be, have agreed to purchaseeffective date hereunder, or 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 Securities which any Underwriter has agreed to purchase court pursuant to Section 2 hereof be increased pursuant to this Section 9 by any federal, state, local or municipal statute, a petition in bankruptcy or insolvency or for reorganization or for the appointment of a receiver or trustee of BSFS's assets or if BSFS makes an amount in excess assignment for the benefit of one-ninth of such number of Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs is more than one-tenth of the 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 defaultcreditors, this Agreement will terminate without liability on the part of any non-defaulting Underwriter or the Company. In any such case which does not result in termination of this Agreement, either you or the Company shall have the right on three (3) days' written notice 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 effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of any such Underwriter under BSFS to terminate this Agreement.
(f) Any termination of this Agreement pursuant to this Section 8 shall be without liability of any character (including, but not limited to, loss of anticipated profits or consequential damages) on the part of any party thereto, except that in the event of a termination pursuant to paragraphs (a), (b), (c), or (d) of this Section 8, the Company will be responsible for BSFS's accountable expenses, which shall include, but are not limited to, BSFS's counsel fees, consultants' fees, entertainment expenses, travel expenses, postage expenses, office costs, advertising costs, clerical costs, due diligence meeting expenses, duplication expenses, long-distance telephone expenses, and general and administrative expenses incurred in connection with the Offering whether or not the sale of the Shares by the Company is consummated.
Appears in 1 contract
Effective Date of Agreement and Termination. A. This Agreement shall become effective upon the later of immediately as to Sections 6 and 8 and, as to all other provisions, (i) if at the time of execution of this AgreementAgreement the Registration Statement has not become effective, (ii) when notification of at 10:00 a.m., on the first full business day following the effectiveness of the Registration Statement has been released by the Commission and Statement, or (iiiii) if a post-effective amendment to at the time of execution of this Agreement the Registration Statement has been filed (including declared effective, at 10:00 a.m. on the first full business day following the date of execution of this Agreement; but this Agreement shall nevertheless become effective at such earlier time after the Registration Statement becomes effective as you may determine on and by notice to the Company or by release of any post-effective amendment required of the Shares for sale 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)public. For the purposes of this Section 10, the effectiveness Shares shall be deemed to have been so released upon the release of such post-effective amendment publication of any newspaper advertisement relating to the Shares or new upon the release by you of telegrams (i) advising the Underwriters that the Shares are released for public offering, or additional registration statement(ii) offering the Shares for sale to securities dealers, whichever may occur first. Until By giving notice before the time this Agreement becomes effective effective, you, as aforesaidrepresentative of the several Underwriters, it or the Company, may be terminated by prevent this Agreement from becoming effective, without liability of any party to any other party, except that the Company by notifying shall remain obligated to pay costs and expenses to the Underwriters or by the Underwriters by notifying the Company. extent provided in Section 6 hereof.
B. This Agreement may be terminated at any time after it becomes effective and with respect to the Firm Shares or the Option Shares in your sole discretion by notice to the Company given prior to the Closing Date by you by written notice to the Company if any of the following has occurred: (i) 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 to market the Securities on the terms and in the manner contemplated in the Prospectus, or (ii) the suspension or material limitation of trading in securities on the New York Stock Exchange, the American Stock Exchange Time or the Nasdaq National Market or limitation on prices for securities on any such exchange or the Nasdaq National Market or (iii) the declaration Date of a banking moratorium by either federal or New York State authorities. 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 number of Securities, which such defaulting Underwriter or UnderwritersDelivery, as the case may be, agreed but failed or refused in the event that (i) any condition to purchase is not more than one-tenth the obligations of the total number of Securities Underwriters set forth in Section 7 hereof has not been satisfied or (ii) the Company or the Selling Shareholder shall have failed, refused or been unable to deliver the Shares or to perform all obligations and satisfy all conditions on their respective parts to be purchased on performed or satisfied hereunder at or prior to such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, in the proportion which the number Closing Time or Date of Securities set forth opposite its name in Annex I bears to the total number of Securities which all the non-defaulting UnderwritersDelivery, as applicable, other than by reason of a default by any of the case may be, have agreed to purchase, or 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 Securities which any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased . If this Agreement is terminated pursuant to this Section 9 by an amount 10(b), the Company and the Selling Shareholder, pro rata in excess of one-ninth of such accordance with the number of Securities without Shares proposed to be sold by each hereunder will reimburse the written consent Underwriters severally upon demand for all out- of-pocket expenses (including fees and disbursements of such Underwriter. If on counsel) that shall have been incurred by them in connection with the Closing Date any Underwriter or Underwriters shall fail or refuse to proposed purchase Securities and the aggregate number of Securities with respect to which such default occurs is more than one-tenth sale of the 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, Shares.
C. If this Agreement will terminate is terminated pursuant to this Section 10, such termination shall be without liability on the part of any non-defaulting Underwriter or party to any other party, except to the Companyextent provided in this Section 10. In Notwithstanding any such case which does not result termination, the provisions of Section 8 shall remain 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 effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of any such Underwriter under this Agreementeffect.
Appears in 1 contract
Effective Date of Agreement and Termination. This (a) If the Registration Statement has not been declared effective prior to the date of this Agreement, this Agreement shall become effective upon the later of (i) execution of this Agreementat such time, (ii) when after notification of the effectiveness of the Registration Statement has been released by the Commission Commission, as the Representative and (iii) if a post-effective amendment the Company shall agree upon the public offering price and the purchase price of the Shares. If the public offering price and the purchase price of the Shares shall not have been determined prior to 5:00 p.m., New York time, on the fifth full business day after 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 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) 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 to market the Securities on the terms and in the manner contemplated in the Prospectus, or (ii) the suspension or material limitation of trading in securities on the New York Stock Exchange, the American Stock Exchange or the Nasdaq National Market or limitation on prices for securities on any such exchange or the Nasdaq National Market or (iii) the declaration of a banking moratorium by either federal or New York State authorities. 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 number 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 number of Securities to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, in the proportion which the number of Securities set forth opposite its name in Annex I bears to the total number of Securities 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 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 Securities which any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased pursuant to this Section 9 by an amount in excess of one-ninth of such number of Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs is more than one-tenth of the 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 defaultbecome effective, this Agreement will shall thereupon terminate without liability on the part of any non-defaulting Underwriter the Company to the Underwriters (except as provided in Section 4 or Section 7 of this Agreement) or the CompanyUnderwriters to the Company (except as set forth in Section 7 of this Agreement). In By giving notice before the time this Agreement becomes effective, the Representative may prevent this Agreement from becoming effective without liability of any such case which does not result party to the other party, except that the Company shall remain obligated to pay costs and expenses to the extent provided in termination Section 4 and Section 7 of this Agreement. If the Registration Statement has been declared effective prior to the date of this Agreement, either you or this Agreement shall become effective upon execution and delivery by the Representative and the Company.
(b) This Agreement may be terminated by the Representative in its absolute discretion by giving written notice to the Company shall have the right at any time on or prior 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 effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of any such Underwriter under this Agreement.Date or,
Appears in 1 contract
Samples: Underwriting Agreement (Flour City International Inc)
Effective Date of Agreement and Termination. (a) This Agreement shall become effective upon the later of immediately as to Sections 4 and 6 and, as to all other provisions, (i) if at the time of execution of this AgreementAgreement the Registration Statement has not become effective, (ii) when notification of at 10:00 a.m., on the first full business day following the effectiveness of the Registration Statement has been released by the Commission and Statement, or (iiiii) if a post-effective amendment to at the time of execution of this Agreement the Registration Statement has been filed (including declared effective, at 10:00 a.m. on the first full business day following the date of execution of this Agreement; but this Agreement shall nevertheless become effective at such earlier time after the Registration Statement becomes effective as you may determine on and by notice to the Company or by release of any post-effective amendment required of the Shares for sale 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)public. For the purposes of this Section 10, the effectiveness Shares shall be deemed to have been so released upon the release of such post-effective amendment publication of any newspaper advertisement relating to the Shares or new upon the release by you of telegrams (i) advising the Underwriters that the Shares are released for public offering, or additional registration statement(ii) offering the Shares for sale to securities dealers, whichever may occur first. Until By giving notice before the time this Agreement becomes effective effective, you, as aforesaidrepresentative of the several Underwriters, it or the Company, may be terminated by prevent this Agreement from becoming effective, without liability of any party to any other party, except that the Company shall remain obligated to pay its costs and expenses to the extent provided in Section 6 hereof.
(b) You may terminate this Agreement, by notifying the Underwriters or by the Underwriters by notifying notice to the Company. This Agreement may be terminated , at any time after it becomes effective and at or prior to the Closing Date by you by written notice to the Company if any of the following has occurred: Time (i) in accordance with Section 7(m) of this Agreement, or (ii) if there has been since the respective dates as of which information is given in the Registration Statement, any 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 and the Subsidiaries, taken as a whole, whether or not arising in the ordinary course of business, or (iii) if there has occurred or accelerated any outbreak or escalation of hostilities or other national or international calamity or crisis or change in economic or political conditions or in the effect of which on the financial markets of the United States or elsewhere thatis such as to make it, in your reasonable judgment, is material and adverse and would, in your judgment, make it impracticable to market the Securities on Shares or enforce contracts for the terms and in sale of the manner contemplated in the ProspectusShares, or (iiiv) the suspension or material limitation of if trading in any securities of the Company has been suspended by the Commission or by the Nasdaq National Market or if trading generally on the New York Stock Exchange, the American Stock Exchange or in the Nasdaq National Market over-the-counter market has been suspended, or limitation on minimum prices for securities on any trading have been fixed by such exchange or the Nasdaq National Market NASD or by order of the Commission or any other governmental authority having jurisdiction, or (iiiv) the declaration of if a banking moratorium has been declared by either federal or New York State or Missouri authorities. If , 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 which in your reasonable opinion has a material adverse effect 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 number 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 number of Securities to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, securities markets in the proportion which the number of Securities set forth opposite its name in Annex I bears to the total number of Securities 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 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 Securities which any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased United States.
(c) If this Agreement is terminated pursuant to this Section 9 by an amount in excess of one-ninth of 10, such number of Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters termination shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs is more than one-tenth of the 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 Agreement will terminate without liability on the part of any non-defaulting Underwriter or party to any other party, except to the Companyextent provided in Section 6. In Notwithstanding any such case which does not result termination, the provisions of Section 8 shall remain 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 effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of any such Underwriter under this Agreementeffect.
Appears in 1 contract
Effective Date of Agreement and Termination. (a) This Agreement shall become effective upon the later of (i) if at the time of execution of this Agreement the Registration Statement has not become effective, at 10:00 A.M. eastern time on the first full business day following the effectiveness of the Registration Statement, or (ii) if at the time of execution of this Agreement, (ii) when notification of the effectiveness of the Registration Statement has been released by declared effective, at 10:00 A.M. eastern time on the Commission and (iii) if a post-first full business day following the date of execution of this Agreement; but this Agreement shall nevertheless become effective amendment to at such earlier time after the Registration Statement has been filed (including becomes effective as you may determine on and by notice to the Company or by release of any post-effective amendment required of the Shares for sale 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)public. For the purposes of this Section 10, the effectiveness Shares shall be deemed to have been so released upon the release for publication of such post-effective amendment any newspaper advertisement relating to the Shares or new upon the release by you of telegrams or additional registration statementfacsimile messages (i) advising the Underwriters that the Shares are released for public offering, or (ii) offering the Shares for sale to securities dealers, whichever may occur first. Until By giving notice before the time this Agreement becomes effective effective, you, as aforesaidthe Representatives of the several Underwriters, it or the Company, may be terminated by 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 Sections 5(i) and 10(d) hereof.
(b) You may terminate this Agreement by notifying notice to the Underwriters or by the Underwriters by notifying the Company. This Agreement may be terminated Company at any time after it becomes effective and at or prior to the Closing Date by you by written notice to the Company if any of the following has occurred: (i) in accordance with the last paragraph of Section 6 of this Agreement; or (ii) if there has been, since the respective dates as of which information is given in the Registration Statement, any material adverse change, or any development which might reasonably be viewed as resulting in a material adverse change in or affecting the assets, properties, results of operation, financial condition or business prospects of the Company and the Subsidiaries taken as a whole, whether or not arising in the ordinary course of business; or (iii) if there has occurred or accelerated any outbreak or escalation of hostilities or other national or international calamity or crisis or change in economic or political conditions or in the effect of which on the financial markets of the United States or elsewhere thatis such as to make it, in your judgment, is material and adverse and would, in your judgment, make it impracticable to market the Securities Shares or enforce contracts for the sale of the Shares; or (iv) if trading in any securities of the Company has been suspended by the Commission or by the NASD or the AMEX, or if trading generally on the terms and AMEX or in the manner contemplated in the Prospectusover-the- counter market has been suspended, or (ii) the suspension or material limitation of trading in securities on the New York Stock Exchange, the American Stock Exchange or the Nasdaq National Market or limitation limitations on prices for trading (other than limitations on hours or numbers of days of trading) have been fixed, or maximum ranges for prices for securities on any have been required, by such exchange or the Nasdaq National Market NASD or by order of the Commission or any other governmental authority; or (iiiv) the declaration of if a banking moratorium has been declared by either federal or New York State or California authorities. If on the Closing Date, ; or (vi) any one federal 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, as 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 proportion which the number of Securities set forth opposite its name in Annex I bears to the total number of Securities 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 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 Securities which any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased pursuant to this Section 9 by an amount in excess of one-ninth of such number of Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs is more than one-tenth of the 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 Agreement will terminate without liability on the part of any non-defaulting Underwriter or the Company. 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 effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of any such Underwriter under this Agreement.state statute,
Appears in 1 contract
Samples: Underwriting Agreement (Vidatron Entertainment Group Inc)
Effective Date of Agreement and Termination. This (a) If the Registration Statement has not been declared effective prior to the date of this Agreement, this Agreement shall become effective upon the later of (i) execution of this Agreementat such time, (ii) when after notification of the effectiveness of the Registration Statement has been released by the Commission Commission, as you and the Company shall agree upon the public offering price and other terms and the purchase price of the Stock. If the public offering price and other terms and the purchase price of the Stock shall not have been determined prior to 5:00 p.m., New York time, on the third full business day after the Registration Statement has become effective, this Agreement shall thereupon terminate without liability on the part of the Company to the Underwriters (iii) if a post-except as provided in Section 4 or Section 7 of this Agreement). By giving notice before the time this Agreement becomes effective, you, as Representatives of the several Underwriters, may prevent this Agreement from becoming effective amendment without liability of any party to the other party, except that the Company shall remain obligated to pay costs and expenses to the extent provided in Section 4 and Section 7 of this Agreement. If the Registration Statement has been filed (including any post-declared effective amendment required prior 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)date of this Agreement, the effectiveness of such post-effective amendment or new or additional registration statement. Until this Agreement becomes shall become effective as aforesaid, it may be terminated upon execution and delivery by the Company by notifying the Underwriters or by the Underwriters by notifying you and the Company. .
(b) This Agreement may be terminated by you in your sole discretion by giving written notice to the Company at any time after it becomes effective and on or prior to the Closing Date by you by written notice or, with respect to the Company purchase of the Option Stock, on or prior to any later date on which the Option Stock is to be purchased, 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, any outbreak material adverse change or escalation of hostilities or other national or international calamity or crisis or development involving a prospective adverse change in economic conditions or affecting the business, properties, condition (financial or otherwise), results of operations or prospects of the Company and its subsidiaries taken as a whole, whether or not arising in the financial markets ordinary course of the United States or elsewhere thatbusiness, in your judgment, is material and adverse and which would, in your sole judgment, make it the offering or the delivery of the Stock impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus, or inadvisable; or (ii) the if there shall have been suspension or material limitation of trading in securities generally or a material adverse decline in value of securities generally on the New York Stock Exchange, the American Stock Exchange or the Nasdaq National Market Market, or limitation limitations on prices (other than limitations on hours or numbers of days of trading) for securities on any such exchange or the Nasdaq National Market system; or (iii) if there shall have 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, properties, condition (financial or otherwise), results of operations or prospects of the Company and its subsidiaries taken as a whole; or (iv) if there shall have been the declaration of a banking moratorium by either federal or federal, New York State or California or state authorities; (v) existing international monetary conditions shall have undergone a material change which, in your sole judgment, makes the offering or delivery of the Stock impracticable or inadvisable. 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 number 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 number of Securities to be purchased on such date by all Underwriters, each non-defaulting Underwriter this Agreement shall be obligated severally, in the proportion which the number of Securities set forth opposite its name in Annex I bears to the total number of Securities 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 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 Securities which any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased terminated pursuant to this Section 9 by an amount in excess of one-ninth of such number of Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters 9, there shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs is more than one-tenth be no liability of the aggregate number of Securities Company to be purchased on such date by all the Underwriters (except pursuant to Section 4 and arrangements satisfactory to you and the Company for purchase of such Securities are not made within 48 hours after such default, this Agreement will terminate without liability on the part of any non-defaulting Underwriter or the Company. In any such case which does not result in termination Section 7 of this Agreement, either you or ) and no liability of the Underwriters to the Company shall have (except to the right to postpone the Closing Date, but extent provided 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. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect Section 7 of any default of any such Underwriter under this Agreement).
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement shall become effective upon the later of (i) execution of this Agreement, (ii) when notification of the effectiveness of the Registration Statement has been released by the Commission immediately 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 only as follows:
(a) In the event that the minimum number of Shares are not sold by the Company by notifying the Underwriters or by the Underwriters by notifying the Company. Expiration Date as described in Section 0 hereof.
(b) This Agreement may be terminated at any time after it becomes effective and prior by Banc Stock by notice to the Closing Date Company in the event that the Company shall have failed or been unable to comply with any of the terms, conditions or provisions of this Agreement on the part of the Company to be performed, complied with or fulfilled within the respective times herein provided for, unless compliance therewith or performance or satisfaction thereof shall have been expressly waived by you Banc Stock in writing.
(c) This Agreement may be terminated by written Banc Stock by notice to the Company if Banc Stock believes in its sole judgment that any adverse changes have occurred in the management of the following has occurred: Company, that material adverse changes have occurred in the financial condition, prospects or obligations of the Company or if the Company shall have sustained a loss by strike, fire, flood, accident or other calamity of such a character as, in the sole judgment of Bank Stock, may interfere materially with the conduct of the Company's business and operations regardless of whether or not such loss shall have been insured.
(d) This Agreement may be terminated by Banc Stock by notice to the Company at any time if, in the sole judgment of Banc Stock, payment for and delivery of the Shares is rendered impracticable or inadvisable because (i) any outbreak or escalation of hostilities or other national or international calamity or crisis or change additional material governmental restrictions not in economic conditions or in the financial markets of the United States or elsewhere that, in your judgment, is material force and adverse and would, in your judgment, make it impracticable to market the Securities effect on the terms and date hereof shall have been imposed upon the trading in securities generally, or minimum or maximum prices shall have been generally established on the manner contemplated New York or American Stock Exchange or the over-the-counter market, or trading in the Prospectussecurities generally on either such Exchange or over-the-counter market shall have been suspended, or a general moratorium shall have been established by federal or state authorities, or (ii) the suspension a war or material limitation of trading in securities on the New York Stock Exchangeother national calamity shall have occurred, the American Stock Exchange or the Nasdaq National Market or limitation on prices for securities on any such exchange or the Nasdaq National Market or (iii) substantial and material changes in the declaration of a banking moratorium by either federal or New York State authorities. If on the Closing Date, any one or more condition of the Underwriters shall fail market (either generally or refuse with reference 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, as the case may be, agreed but failed or refused to purchase is not more than one-tenth sale of the total number of Securities Shares to be purchased on offered hereby) beyond normal fluctuations are such date by all Underwritersthat it would be undesirable, each non-defaulting Underwriter impracticable or inadvisable in the sole judgment of Banc Stock to proceed with this Agreement or with the public offering, (iv) the DOC Order, the FDIC Order, or the Federal Reserve Board Approval shall have been withdrawn or materially altered, or notice shall have been received to the effect that any such approvals will not be received, or if received, will be subject to conditions that the Company would not be able to fulfill in a reasonable time in Banc Stock's opinion, or (v) of any matter materially adversely affecting the Company.
(e) In the event any action or proceeding shall be obligated severallyinstituted or threatened against Banc Stock, either in any court of competent jurisdiction, before the proportion which the number of Securities set forth opposite Commission or any state securities commission concerning its name in Annex I bears activities as a broker or dealer that would prevent Banc Stock from acting as such, at any time prior to the total number of Securities which all the non-defaulting Underwriters, as the case may be, have agreed to purchaseeffective date hereunder, or 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 Securities which any Underwriter has agreed to purchase court pursuant to Section 2 hereof be increased pursuant to this Section 9 by any federal, state, local or municipal statute, a petition in bankruptcy or insolvency or for reorganization or for the appointment of a receiver or trustee of Banc Stock's assets or if Banc Stock makes an amount in excess assignment for the benefit of one-ninth of such number of Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs is more than one-tenth of the 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 defaultcreditors, this Agreement will terminate without liability on the part of any non-defaulting Underwriter or the Company. In any such case which does not result in termination of this Agreement, either you or the Company shall have the right on three (3) days' written notice 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 effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of any such Underwriter under Banc Stock to terminate this Agreement.
(f) Any termination of this Agreement pursuant to this Section 0 shall be without liability of any character (including, but not limited to, loss of anticipated profits or consequential damages) on the part of any party thereto, except that in such event the Company will be responsible for Banc Stock's accountable expenses, which shall include, but are not limited to, Banc Stock's counsel fees, consultants' fees, entertainment expenses, travel expenses, postage expenses, office costs, advertising costs, clerical costs, due diligence meeting expenses, duplication expenses, long-distance telephone expenses, and general and administrative expenses incurred in connection with the Offering whether or not the sale of the Shares by the Company is consummated.
Appears in 1 contract
Effective Date of Agreement and Termination. This (a) If the Registration Statement has not been declared effective prior to the date of this Agreement, this Agreement shall become effective upon the later of (i) execution of this Agreementat such time, (ii) when after notification of the effectiveness of the Registration Statement has been released by the Commission Commission, as you and the Company shall agree upon the public offering price and the purchase price of the Shares. If the public offering price and the purchase price of the Shares shall not have been determined prior to 5:00 p.m., New York time, on the fifth full business day after the Registration Statement has become effective, this Agreement shall thereupon terminate without liability on the part of the Company to the Underwriters (iiiexcept as provided in Section 4 or Section 7 of this Agreement) if a post-or the Underwriters to the Company (except as set forth in Section 7 of this Agreement). By giving notice before the time this Agreement becomes effective, you, as Representative of the several Underwriters, may prevent this Agreement from becoming effective amendment without liability of any party to the other party, except that the Company shall remain obligated to pay costs and expenses to the extent provided in Section 4 and Section 7 of this Agreement. If the Registration Statement has been filed (including any post-declared effective amendment required prior 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)date of this Agreement, the effectiveness of such post-effective amendment or new or additional registration statement. Until this Agreement becomes shall become effective as aforesaid, it may be terminated upon execution and delivery by the Company by notifying the Underwriters or by the Underwriters by notifying you and the Company. .
(b) This Agreement may be terminated by you in your absolute discretion by giving written notice to the Company at any time after it becomes effective and on or prior to the Closing Date by you by written notice or, with respect to the Company purchase of the Option Shares, on or prior to any later date on which the Option Shares are to be purchased, 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, any material adverse change or development involving a prospective adverse change in or affecting particularly the business, properties, condition (financial or otherwise), results of operations 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; or (ii) if there shall have been the engagement in hostilities or an escalation of major hostilities by the United States or the declaration of war or a national emergency by the United States on or after the date hereof, or any outbreak or escalation of hostilities or other national or international calamity or crisis or change in economic or political conditions, if the effect of such outbreak, calamity, crisis or change in economic or political conditions or in on the financial markets of the United States or elsewhere that, in your judgment, is material and adverse and would, in your sole judgment, make it the offering or delivery of the Shares impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus, or inadvisable; or (iiiii) the if there shall have been suspension or material limitation of trading in securities generally or a material adverse decline in value of securities generally on the New York Stock Exchange, the American Stock Exchange or Exchange, the Nasdaq National Market Market, or limitation limitations on prices (other than limitations on hours or numbers of days of trading) for securities on any either such exchange or the Nasdaq National Market system; or (iiiiv) if there shall have been the declaration enactment, publication, decree or other promulgation of a banking moratorium by either any federal or New York State authorities. If on the Closing Datestate statute, regulation, rule or order of, or commencement of any proceeding or investigation by, 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 Securitiescourt, 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 Securities to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, in the proportion which the number of Securities set forth opposite its name in Annex I bears to the total number of Securities 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 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 Securities which any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased pursuant to this Section 9 by an amount in excess of one-ninth of such number of Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs is more than one-tenth of the 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 Agreement will terminate without liability on the part of any non-defaulting Underwriter or the Company. 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 effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of any such Underwriter under this Agreement.legislative body,
Appears in 1 contract
Samples: Underwriting Agreement (Parallel Petroleum Corp /De/)
Effective Date of Agreement and Termination. (a) This Agreement shall become effective upon the later of immediately as to Sections 6 and 8 and, as to all other provisions, (i) if at the time of execution of this AgreementAgreement the Registration Statement has not become effective, (ii) when notification of at 10:00 a.m., on the first full business day following the effectiveness of the Registration Statement has been released by the Commission and Statement, or (iiiii) if a post-effective amendment to at the time of execution of this Agreement the Registration Statement has been filed (including declared effective, at 10:00 a.m. on the first full business day following the date of execution of this Agreement; but this Agreement shall nevertheless become effective at such earlier time after the Registration Statement becomes effective as you may determine on and by notice to the Company or by release of any post-effective amendment required of the Shares for sale 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)public. For the purposes of this Section 10, the effectiveness Shares shall be deemed to have been so released upon the release of such post-effective amendment publication of any newspaper advertisement relating to the Shares or new upon the release by you of telegrams (i) advising the Underwriters that the Shares are released for public offering, or additional registration statement(ii) offering the Shares for sale to securities dealers, whichever may occur first. Until By giving notice before the time this Agreement becomes effective effective, you, as aforesaidrepresentative of the several Underwriters, it or the Company, may be terminated by prevent this Agreement from becoming effective, without liability of any party to any other party, except that the Company by notifying shall remain obligated to pay costs and expenses to the Underwriters or by the Underwriters by notifying the Company. extent provided in Section 6 hereof.
(b) This Agreement may be terminated at any time after it becomes effective and with respect to the Firm Shares or the Option Shares in your sole discretion by notice to the Company given prior to the Closing Date by you by written notice to the Company if any of the following has occurred: (i) 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 to market the Securities on the terms and in the manner contemplated in the Prospectus, or (ii) the suspension or material limitation of trading in securities on the New York Stock Exchange, the American Stock Exchange Time or the Nasdaq National Market or limitation on prices for securities on any such exchange or the Nasdaq National Market or (iii) the declaration Date of a banking moratorium by either federal or New York State authorities. 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 number of Securities, which such defaulting Underwriter or UnderwritersDelivery, as the case may be, agreed but failed or refused in the event that (i) any condition to purchase is not more than one-tenth the obligations of the total number of Securities Underwriters set forth in Section 7 hereof has not been satisfied or (ii) the Company or the Selling Shareholders shall have failed, refused or been unable to deliver the Shares or to perform all obligations and satisfy all conditions on their respective parts to be purchased on performed or satisfied hereunder at or prior to such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, in the proportion which the number Closing Time or Date of Securities set forth opposite its name in Annex I bears to the total number of Securities which all the non-defaulting UnderwritersDelivery, as applicable, other than by reason of a default by any of the case may be, have agreed to purchase, or 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 Securities which any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased . If this Agreement is terminated pursuant to this Section 9 10(b), the Company will reimburse the Underwriters severally upon demand for all out-of-pocket expenses (including fees and disbursements of counsel) that shall have been incurred by an amount them in excess of one-ninth of such number of Securities without connection with the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters shall fail or refuse to proposed purchase Securities and the aggregate number of Securities with respect to which such default occurs is more than one-tenth sale of the 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, Shares.
(c) If this Agreement will terminate is terminated pursuant to this Section 10, such termination shall be without liability on the part of any non-defaulting Underwriter or party to any other party, except to the Companyextent provided in this Section 10. In Notwithstanding any such case which does not result termination, the provisions of Section 8 shall remain 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 effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of any such Underwriter under this Agreementeffect.
Appears in 1 contract
Effective Date of Agreement and Termination. (a) This Agreement shall become effective upon the later of immediately as to Sections 4 and 6 and, as to all other provisions, (i) if at the time of execution of this AgreementAgreement the Registration Statement has not become effective, (ii) when notification of at 10:00 a.m. on the first full business day following the effectiveness of the Registration Statement has been released by the Commission and Statement, or (iiiii) if a post-effective amendment to at the time of execution of this Agreement the Registration Statement has been filed (including declared effective, at 10:00 a.m. on the first full business day following the date of execution of this Agreement; but this Agreement shall nevertheless become effective at such earlier time after the Registration Statement becomes effective as you may determine on and by notice to the Company or by release of any post-effective amendment required of the Shares for sale 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)public. For the purposes of this Section 8, the effectiveness Shares shall be deemed to have been so released upon the release of such post-effective amendment publication of any newspaper advertisement relating to the Shares or new upon the release by you of telegrams (i) advising the Underwriters that the Shares are released for public offering, or additional registration statement(ii) offering the Shares for sale to securities dealers, whichever may occur first. Until By giving notice before the time this Agreement becomes effective effective, you, as aforesaidrepresentative of the several Underwriters, it or the Company, may be terminated by 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 and except that the provisions of Section 6 shall remain in effect.
(b) You may terminate this Agreement, by notifying the Underwriters or by the Underwriters by notifying notice to the Company. This Agreement may be terminated , at any time after it becomes effective and at or prior to the Closing Date by you by written notice to the Company if any of the following has occurred: Time (i) in accordance with the penultimate paragraph of Section 5 of this Agreement, or (ii) if there has been since the respective dates as of which information is given in the Registration Statement, any 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 escalation of hostilities or other national or international calamity or crisis or change in economic or political conditions or in the effect of which on the financial markets of the United States or elsewhere thatis such as to make it, in your judgment, is material and adverse and would, in your judgment, make it impracticable to market the Securities on Shares or enforce contracts for the terms and in sale of the manner contemplated in the ProspectusShares, or (iiiv) the suspension or material limitation of if trading in any securities of the Company has been suspended by the Commission or by the Nasdaq Stock Market or if trading generally on the New York Stock Exchange, the American Stock Exchange or in the Nasdaq National Market over-the-counter market has been suspended, or limitation limitations on prices for trading (other than limitations on hours or numbers of days of trading) have been fixed, or maximum ranges for prices for securities on any have been required, by such exchange or the Nasdaq National Market NASD or by order of the Commission or any other governmental authority, or (iiiv) if there has been any downgrading in the declaration rating of any of the Company's debt securities or preferred stock by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the 1933 Act), or (vi) if a banking moratorium has been declared by either federal or New York State or Tennessee authorities. If , or (vii) 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 (viii) any action has been taken by any federal, state or local government or agency in respect of its monetary or fiscal affairs which in your reasonable opinion has a material adverse effect 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 number 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 number of Securities to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, securities markets in the proportion which the number of Securities set forth opposite its name in Annex I bears to the total number of Securities 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 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 Securities which any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased United States.
(c) If this Agreement is terminated pursuant to this Section 9 by an amount in excess of one-ninth of 8, such number of Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters termination shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs is more than one-tenth of the 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 Agreement will terminate without liability on the part of any non-defaulting Underwriter or party to any other party, except to the Companyextent provided in Section 4. In Notwithstanding any such case which does not result termination, the provisions of Section 6 shall remain 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 effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of any such Underwriter under this Agreementeffect.
Appears in 1 contract
Samples: Underwriting Agreement (Gulf Island Fabrication Inc)
Effective Date of Agreement and Termination. This (a) If the Registration Statement has not been declared effective prior to the date of this Agreement, this Agreement shall become effective upon the later of (i) execution of this Agreementat such time, (ii) when after notification of the effectiveness of the Registration Statement has been released by the Commission Commission, as the Representative and (iii) if a post-effective amendment the Company shall agree upon the public offering price and the purchase price of the Stock. If the public offering price and other terms and the purchase price of the Stock shall not have been determined prior to 5:00 p.m., New York time, on the fifth full business day after 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)become effective, the effectiveness of such post-effective amendment or new or additional registration statement. Until this Agreement becomes effective shall thereupon terminate without liability on the part of the Company or the Underwriters (except as aforesaid, it provided in Section
(b) This Agreement may be terminated by the Representative by giving written notice to the Company by notifying the Underwriters or by the Underwriters by notifying the Company. This Agreement may be terminated at any time after it becomes effective and on or prior to the Closing Date by you by written notice or, with respect to the Company purchase of the Option Stock, on or prior to any later date on which the Option Stock is to be purchased, as the case may be, if prior to such time any of the following has occurred: (i) after the respective dates as of which information is given in the Registration Statement and the Prospectus, any outbreak material adverse change or escalation of hostilities or other national or international calamity or crisis or development involving a prospective material adverse change in economic conditions or in affecting materially the business, properties, condition (financial markets or otherwise), results of operations or prospects of the United States or elsewhere thatCompany and its subsidiaries taken as a whole, in your judgment, is material and adverse and which would, in your the Representative's sole judgment, make it the offering or the delivery of the Stock impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus, or inadvisable; or (ii) the suspension or material limitation of if trading in securities of the Company has been suspended by the Commission or if trading generally on the New York Stock Exchange, the American Stock Exchange or the Nasdaq National Market over-the-counter market has been suspended or limitation on minimum or maximum prices for trading have been fixed, or maximum ranges for prices for securities on any have been required, by either of such exchange exchanges, by the NASD or by the Nasdaq National Market Commission; or (iii) if there shall have 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, court, legislative body, agency or other governmental authority which in the Representative's sole judgment materially affects or may materially affect the business, properties, condition (financial or otherwise), results of operations or prospects of the Company and its subsidiaries taken as a whole; (iv) if there shall have been the declaration of a banking moratorium by either federal or federal, New York State or California authorities. If on the Closing Date, any one or more of the Underwriters ; (v) existing international monetary conditions 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, as 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 severallyundergone a material change which, in the proportion Representative's sole judgment, makes the offering or delivery of the Stock impracticable or inadvisable; or (vi) if there has occurred any material change in the financial markets in the United States or internationally or any outbreak of hostilities or escalation of existing hostilities or other crisis, the effect of which in the number Representative's sole judgment make the offering or delivery of Securities set forth opposite its name in Annex I bears to the total number of Securities which all the non-defaulting Underwriters, as the case may be, have agreed to purchase, Stock impracticable or 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 inadvisable. If this Agreement shall the number of Securities which any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased terminated pursuant to this Section 9 by an amount in excess of one-ninth of such number of Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters 9, there -33- shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs is more than one-tenth be no liability of the aggregate number of Securities Company to be purchased on such date by all the Underwriters (except pursuant to Section 4 and arrangements satisfactory to you and the Company for purchase of such Securities are not made within 48 hours after such default, this Agreement will terminate without liability on the part of any non-defaulting Underwriter or the Company. In any such case which does not result in termination Section 7 of this Agreement, either you or ) and no liability of the Underwriters to the Company shall have the right (except pursuant 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 Sections 4a and the Prospectus or any other documents or arrangements may be effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect 7 of any default of any such Underwriter under this Agreement).
Appears in 1 contract
Effective Date of Agreement and Termination. (a) This Agreement shall become effective upon the later of immediately as to Sections 6 and 8 and, as to all other provisions, (i) if at the time of execution of this AgreementAgreement the Registration Statement has not become effective, (ii) when notification of at 9:30 a.m. New York, New York time on the first full business day following the effectiveness of the Registration Statement has been released by the Commission and Statement, or (iiiii) if a post-effective amendment to at the time of execution of this Agreement the Registration Statement has been filed (including declared effective, at 9:30 a.m. New York, New York time on the first full business day following the date of execution of this Agreement; but this Agreement shall nevertheless become effective at such earlier time after the Registration Statement becomes effective as you may determine on and by notice to the Company and the Selling Shareholders or by release of any post-effective amendment required of the Shares for sale 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)public. For the purposes of this Section 10, the effectiveness Shares shall be deemed to have been so released upon the release of such post-effective amendment publication of any newspaper advertisement relating to the Shares or new upon the release by you of telegrams (i) advising the Underwriters that the Shares are released for public offering, or additional registration statement(ii) offering the Shares for sale to securities dealers, whichever may occur first. Until By giving notice before the time this Agreement becomes effective effective, you, as aforesaidrepresentatives of the several Underwriters, it may be terminated by 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 6 hereof and except that the provisions of Section 8 shall remain in effect.
(b) You may terminate this Agreement, by notifying notice to the Underwriters or by Company and the Underwriters by notifying the Company. This Agreement may be terminated Selling Shareholders, at any time after it becomes effective and at or prior to the Closing Date by you by written notice to the Company if any of the following has occurred: Time (i) in accordance with the penultimate paragraph of Section 7 of this Agreement, or (ii) if there has been since the respective dates as of which information is given in the Registration Statement, any 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 escalation of hostilities or other national or international calamity or crisis or change in economic or political conditions or in the effect of which on the financial markets of the United States or elsewhere thatis such as to make it, in your judgment, is material and adverse and would, in your judgment, make it impracticable to market the Securities on Shares or enforce contracts for the terms and in sale of the manner contemplated in the ProspectusShares, or (iiiv) the suspension or material limitation of if trading in any securities of the Company has been suspended by the Commission or by the Nasdaq Stock Market or if trading generally on the New York Stock Exchange, the American Stock Exchange or in the Nasdaq National Market over-the-counter market has been suspended, or limitation limitations on prices for trading (other than limitations on hours or numbers of days of trading) have been fixed, or maximum ranges for prices for securities on any have been required, by such exchange or the Nasdaq National Market NASD or by order of the Commission or any other governmental authority, or (iiiv) if there has been any downgrading in the declaration rating of any of the Company's debt securities or preferred stock by any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the 1933 Act), or (vi) if a banking moratorium has been declared by either federal or New York State or Tennessee authorities. If , or (vii) 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 (viii) any action has been taken by any federal, state or local government or agency in respect of its monetary or fiscal affairs which in your reasonable opinion has a material adverse effect 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 number 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 number of Securities to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, securities markets in the proportion which the number of Securities set forth opposite its name in Annex I bears to the total number of Securities 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 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 Securities which any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased United States.
(c) If this Agreement is terminated pursuant to this Section 9 by an amount in excess of one-ninth of 10, such number of Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters termination shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs is more than one-tenth of the 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 Agreement will terminate without liability on the part of any non-defaulting Underwriter or party to any other party, except to the Companyextent provided in Section 6. In Notwithstanding any such case which does not result termination, the provisions of Section 8 shall remain 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 effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of any such Underwriter under this Agreementeffect.
Appears in 1 contract
Samples: Underwriting Agreement (Gulf Island Fabrication Inc)
Effective Date of Agreement and Termination. (a) This Agreement shall become effective upon the later of immediately as to Sections 4 and 6 and, as to all other provisions, (i) if at the time of execution of this AgreementAgreement the Registration Statement has not become effective, (ii) when notification of at 10:00 a.m., on the first full business day following the effectiveness of the Registration Statement has been released by the Commission and Statement, or (iiiii) if a post-effective amendment to at the time of execution of this Agreement the Registration Statement has been filed (including declared effective, at 10:00 a.m. on the first full business day following the date of execution of this Agreement; but this Agreement shall nevertheless become effective at such earlier time after the Registration Statement becomes effective as you may determine on and by notice to the Company or by release of any post-effective amendment required of the Shares for sale 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)public. For the purposes of this Section 8, the effectiveness Shares shall be deemed to have been so released upon the release of such post-effective amendment publication of any newspaper advertisement relating to the Shares or new upon the release by you of telegrams (i) advising the Underwriters that the Shares are released for public offering, or additional registration statement(ii) offering the Shares for sale to securities dealers, whichever may occur first. Until By giving notice before the time this Agreement becomes effective as aforesaideffective, it you, or the Company, may be terminated by 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 notifying the Underwriters or by the Underwriters by notifying notice to the Company. This Agreement may be terminated , at any time after it becomes effective and at or prior to the Closing Date by you by written notice to the Company if any of the following has occurred: Time (i) in accordance with the last paragraph of Section 5 of this Agreement, or (ii) if there has been since the respective dates as to which information is given to the Registration Statement, any 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 escalation of hostilities or other national or international calamity or crisis or change in economic or political conditions or in the effect of which on the financial markets of the United States or elsewhere thatis such as to make it, in your judgment, is material and adverse and would, in your judgment, make it impracticable to market the Securities on Shares or enforce contracts for the terms and in sale of the manner contemplated in the ProspectusShares, or (iiiv) the suspension or material limitation of if trading in any securities of the Company has been suspended by the Commission or by the NASD, or if trading generally on the New York Stock Exchange, the American Stock Exchange or in the Nasdaq National Market over-the-counter market has been suspended, or limitation limitations on prices for trading (other than limitations on hours or numbers of days of trading) have been fixed, or maximum ranges for prices for securities on any have been required, by such exchange or the Nasdaq National Market NASD or by order of the Commission or any other governmental authority, or (iiiv) the declaration of if a banking moratorium has been declared by either federal or New York State or Tennessee authorities. If , 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 which in your reasonable opinion has a material adverse effect 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 number 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 number of Securities to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, securities markets in the proportion which the number of Securities set forth opposite its name in Annex I bears to the total number of Securities 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 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 Securities which any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased United States.
(c) If this Agreement is terminated pursuant to this Section 9 by an amount in excess of one-ninth of 8, such number of Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters termination shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs is more than one-tenth of the 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 Agreement will terminate without liability on the part of any non-defaulting Underwriter or party to any other party, except to the Companyextent provided in Section 4. In Notwithstanding any such case which does not result termination, the provisions of Section 6 shall remain 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 effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of any such Underwriter under this Agreementeffect.
Appears in 1 contract
Effective Date of Agreement and Termination. (a) This Agreement shall become effective upon its execution. Notwithstanding the later foregoing, the provisions of this Section 9 and of Sections 1, 4, 6 and 7 hereof shall at all times be in full force and effect.
(ib) execution You shall have the right to terminate this Agreement at any time prior to the Closing Time or to terminate the obligations of the Underwriters to purchase the Additional Shares at any time prior to the Option Closing Time, as the case may be, if (A) any of the conditions specified in Section 5 shall not have been fulfilled when and as required by this Agreement to be fulfilled, (B) if there has been since the respective dates as of which information is given in the Registration Statement, the Prospectus or the Disclosure Package, any development having a Material Adverse Effect, or any development involving a prospective Material Adverse Effect, or material change in management of the Company, the Partnership or any Subsidiary, whether or not arising in the ordinary course of business, (C) trading in the Company’s Common Stock shall have been suspended by the Commission or the New York Stock Exchange, (D) trading in securities generally on the New York Stock Exchange or NASDAQ shall have been suspended or materially limited, or minimum or maximum prices shall have been generally established on such exchange, or additional material governmental restrictions, not in force on the date of this Agreement, (ii) when notification shall have been imposed upon trading in securities generally by any such exchange or by order of the effectiveness of Commission or any court or other governmental authority having jurisdiction, (E) a general moratorium on commercial banking activities shall have been declared by either federal, North Carolina or New York authorities, (F) any downgrading shall have occurred in the Registration Statement has been released rating accorded the Company’s debt securities or preferred stock by any “nationally recognized statistical rating organization,” as that term is defined by the Commission and (iiifor purposes of Rule 436(g)(2) 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)1933 Act or any such organization shall have publicly announced that it has under surveillance or review, the effectiveness with possible negative implications, its rating 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 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: Company’s debt securities or preferred stock, or (G) (i) there shall have occurred any outbreak or escalation of hostilities or acts of terrorism involving the United States that result in a declaration of a national emergency or war by the United States or (ii) there shall have been any other national or international calamity or crisis or any change in political, financial or economic conditions or in other material event the effect of which on the financial markets of the United States of any such event in (i) or elsewhere that, (ii) in your judgment, is material and adverse and would, in your judgment, make reasonable judgment makes it impracticable or inadvisable to market proceed with the Securities offering, sale and delivery of the Firm Shares or the Additional Shares, as the case may be, on the terms and in the manner contemplated in by the Prospectus, or .
(iic) the suspension or material limitation Any notice of trading in securities on the New York Stock Exchange, the American Stock Exchange or the Nasdaq National Market or limitation on prices for securities on any such exchange or the Nasdaq National Market or (iii) the declaration of a banking moratorium by either federal or New York State authorities. 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 number 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 number of Securities to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, in the proportion which the number of Securities set forth opposite its name in Annex I bears to the total number of Securities 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 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 Securities which any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased termination pursuant to this Section 9 by an amount shall be in excess of one-ninth of such number of Securities without the written consent of such Underwriter. writing.
(d) If on the Closing Date this Agreement shall be terminated pursuant to any Underwriter or Underwriters shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs is more than one-tenth of the aggregate number provisions hereof (otherwise than pursuant to Section 10(b)), or if the sale of Securities the Shares provided for herein is not consummated because any condition to be purchased on such date by all the obligations of the Underwriters and arrangements satisfactory to you and the Company for purchase set forth herein is not satisfied or because of such Securities are not made within 48 hours after such defaultany refusal, this Agreement will terminate without liability inability or failure on the part of any non-defaulting Underwriter or the Company. In any such case which does not result in termination of this Agreement, either you or the Company to perform any agreement herein or comply with any provision hereof, the Company will, subject to demand by you, reimburse the Underwriters for all reasonable out-of-pocket expenses (including the reasonable fees and expenses of their counsel), incurred by the Underwriters in connection herewith. If this Agreement shall be terminated pursuant to Section 9(b) hereof, then no party 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 effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of any such Underwriter under this Agreementhereunder.
Appears in 1 contract
Effective Date of Agreement and Termination. This Agreement ------------------------------------------- shall become effective upon the later of (i) execution of this Agreement, (ii) when notification of the effectiveness of the Registration Statement has been released by the Commission 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 after it becomes effective and prior to the Closing Date by you by written notice to the Company if (a) any of the following has occurredoccurred after the execution and delivery of this Agreement and prior to the Closing Date: (i) trading in securities generally on the New York Stock Exchange or the American Stock Exchange shall have been suspended or materially limited, (ii) a general moratorium on commercial banking activities in New York shall have been declared by either Federal or New York State authorities, or (iii) there shall have occurred any material outbreak or escalation of hostilities or other national or international calamity or crisis or any change in economic conditions or in the financial markets of the United States or elsewhere other calamity or crisis that, in your judgment, is material and adverse adverse; and would(b) in the case of any of the events specified in (a) above, such event singly or together with any other such event makes it, in your judgment, make it impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus, or (ii) the suspension or material limitation of trading in securities on the New York Stock Exchange, the American Stock Exchange or the Nasdaq National Market or limitation on prices for securities on any such exchange or the Nasdaq National Market or (iii) the declaration of a banking moratorium by either federal or New York State authorities. If on the Closing Date, any one or more Date either 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, 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 number of Securities to be purchased on such date by all Underwriters, each the non-defaulting Underwriter shall be obligated severally, in the proportion which the number of Securities set forth opposite its name in Annex I bears to the total number of Securities 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 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 Securities -------- which any either Underwriter has agreed to purchase pursuant to Section 2 hereof be increased pursuant to this Section 9 by an amount in excess of one-ninth of such number of Securities without the written consent of such Underwriter. If on the Closing Date any either Underwriter or Underwriters shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs is more than one-tenth of the 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 Agreement will terminate without liability on the part of any non-the non- defaulting Underwriter or and the Company. 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 effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of any such Underwriter under this Agreement.
Appears in 1 contract
Samples: Underwriting Agreement (Mbia Inc)
Effective Date of Agreement and Termination. (a) This Agreement shall become effective upon the later of immediately as to Sections 4 and 6 and, as to all other provisions, (i) if at the time of execution of this AgreementAgreement the Registration Statement has not become effective, (ii) when notification of at 10:00 a.m., on the first full business day following the effectiveness of the Registration Statement has been released by the Commission and Statement, or (iiiii) if a post-effective amendment to at the time of execution of this Agreement the Registration Statement has been filed (including declared effective, at 10:00 a.m. on the first full business day following the date of execution of this Agreement; but this Agreement shall nevertheless become effective at such earlier time after the Registration Statement becomes effective as you may determine on and by notice to the Company or by release of any post-effective amendment required of the Shares for sale 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)public. For the purposes of this Section 8, the effectiveness Shares shall be deemed to have been so released upon the release of such post-effective amendment publication of any newspaper advertisement relating to the Shares or new upon the release by you of telegrams (i) advising the Underwriters that the Shares are released for public offering, or additional registration statement(ii) offering the Shares for sale to securities dealers, whichever may occur first. Until By giving notice before the time this Agreement becomes effective effective, you, as aforesaidrepresentative of the several Underwriters, it or the Company, may be terminated by 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 notifying the Underwriters or by the Underwriters by notifying notice to the Company. This Agreement may be terminated , at any time after it becomes effective and at or prior to the Closing Date by you by written notice to the Company if any of the following has occurred: Time (i) in accordance with the last paragraph of Section 5 of this Agreement, or (ii) if there has been since the respective dates as of which information is given in the Registration Statement, any 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 material adverse change in the financial markets in the United States, any outbreak of hostilities or escalation of hostilities thereof 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 to market the Securities on the terms and in the manner contemplated in the Prospectus, or (ii) the suspension or material limitation of trading in securities on the New York Stock Exchange, the American Stock Exchange or the Nasdaq National Market or limitation on prices for securities on any such exchange or the Nasdaq National Market or (iii) the declaration of development involving a banking moratorium by either federal or New York State authorities. 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 number 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 number of Securities to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, in the proportion which the number of Securities set forth opposite its name in Annex I bears to the total number of Securities 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 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 Securities which any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased pursuant to this Section 9 by an amount in excess of one-ninth of such number of Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs is more than one-tenth of the 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 Agreement will terminate without liability on the part of any non-defaulting Underwriter or the Company. 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 effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of any such Underwriter under this Agreement.prospective change
Appears in 1 contract
Samples: Underwriting Agreement (United Investors Realty Trust)
Effective Date of Agreement and Termination. This (a) If the Registration Statement has not been declared effective prior to the date of this Agreement, this Agreement shall become effective upon the later of (i) execution of this Agreementat such time, (ii) when after notification of the effectiveness of the Registration Statement has been released by the Commission Commission, as the Underwriter and the Company shall agree upon the public offering price and the purchase price of the Shares. If the public offering price and the purchase price of the Shares shall not have been determined prior to 5:00 p.m., New York time, on the fifth full business day after the Registration Statement has become effective, this Agreement shall thereupon terminate without liability on the part of the Company or the Selling Shareholder to the Underwriter (iiiexcept as provided in Section 6 and Section 9 of this Agreement) if a post-or the Underwriter to the Company or the Selling Shareholder (except as set forth in Section 9 of this Agreement). By giving notice before the time this Agreement becomes effective, the Underwriter may prevent this Agreement from becoming effective amendment without liability of any party to the other party, except that the Company shall remain obligated to pay costs and expenses to the extent provided in Section 6 and Section 9 of this Agreement. If the Registration Statement has been filed (including any post-declared effective amendment required prior 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)date of this Agreement, this Agreement shall become effective upon execution and delivery by the Underwriter, the effectiveness of such post-effective amendment or new or additional registration statement. Until this Company and the Selling Shareholder.
(b) This Agreement becomes effective as aforesaid, it may be terminated by the Underwriter in its absolute discretion by giving written notice to the Company by notifying the Underwriters or by the Underwriters by notifying the Company. This Agreement may be terminated at any time after it becomes effective and on or prior to the Closing Date by you by written notice or, with respect to the Company purchase of the Option Shares, on or prior to any later date on which the Option Shares are to be purchased, as the case may be, if prior to such time any of the following has occurredoccurred or, in the Underwriter’ reasonable opinion, is likely to occur: (i) after the respective dates as of which information is given in the Registration Statement and the Prospectus, any Consolidated Material Adverse Effect or development involving a prospective Consolidated Material Adverse Effect in or affecting particularly the business, properties, condition (financial or otherwise), results of operations or prospects of the Company and its direct and indirect subsidiaries, taken as a whole, whether or not arising in the ordinary course of business, occurs which would, in the Underwriter’s reasonable judgment, make the offering or the delivery of the Shares impracticable or inadvisable; or (ii) if there shall have been the engagement in hostilities or an escalation of major hostilities by the United States or the declaration of war or a national emergency by the United States on or after the date hereof, or any outbreak or escalation of hostilities or other national or international calamity or crisis or change in economic or political conditions, if the effect of such outbreak, calamity, crisis or change in economic or political conditions or in on the financial markets of the United States or elsewhere that, in your judgment, is material and adverse and would, in your the Underwriter’s reasonable judgment, make it the offering or delivery of the Shares impracticable to market the Securities on the terms and in the manner contemplated in the Prospectus, or inadvisable; or (iiiii) the if there shall have been suspension or material limitation of trading in securities generally or a material adverse decline in value of securities generally on the New York Stock Exchange, the American Stock Exchange or Exchange, the Nasdaq National Market or limitation on over-the-counter market has been suspended, or minimum prices for trading have been fixed, or maximum ranges for prices for securities on any have been required, by either of such exchange exchanges, by the NASD or by the Nasdaq National Market Commission; or (iiiiv) if there shall have 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 the Underwriter’s reasonable judgment has or may have a Consolidated Material Adverse Effect; or (v) if there shall have been the declaration of a banking moratorium by either federal or federal, New York State or California state authorities; or (vi) if there shall have been the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs which in the Underwriter’s reasonable judgment has a material adverse effect on the securities markets in the United States; or (vii) existing international monetary conditions shall have undergone a material adverse change which, in your reasonable judgment, makes the offering or delivery of the Shares impracticable or inadvisable. 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 number 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 number of Securities to be purchased on such date by all Underwriters, each non-defaulting Underwriter this Agreement shall be obligated severally, in the proportion which the number of Securities set forth opposite its name in Annex I bears to the total number of Securities 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 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 Securities which any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased terminated pursuant to this Section 9 by an amount in excess of one-ninth of such number of Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters 10, there shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs is more than one-tenth be no liability of the 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 Agreement will terminate without liability on the part of any non-defaulting Underwriter or the Company. In any such case which does not result in termination Selling Shareholder to the Underwriter (except pursuant to Section 6 and Section 9 of this Agreement, either you ) and no liability of the Underwriter to the Company or the Company shall have Selling Shareholder (except to the right to postpone the Closing Date, but extent provided 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. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect Section 9 of any default of any such Underwriter under this Agreement).
Appears in 1 contract
Effective Date of Agreement and Termination. (a) This Agreement shall become effective upon the later of (i) if at the time of execution of this Agreement the Registration Statement has not become effective, at 10:00 A.M. eastern time on the first full business day following the effectiveness of the Registration Statement, or (ii) if at the time of execution of this Agreement, (ii) when notification of the effectiveness of the Registration Statement has been released by declared effective, at 10:00 A.M. eastern time on the Commission and (iii) if a post-first full business day following the date of execution of this Agreement; but this Agreement shall nevertheless become effective amendment to at such earlier time after the Registration Statement has been filed (including becomes effective as you may determine on and by notice to the Company or by release of any post-effective amendment required of the Shares for sale 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)public. For the purposes of this Section 11, the effectiveness Shares shall be deemed to have been so released upon the release for publication of such post-effective amendment any newspaper advertisement relating to the Shares or new upon the release by you of telegrams or additional registration statementfacsimile messages (i) advising the Underwriters that the Shares are released for public offering, or (ii) offering the Shares for sale to securities dealers, whichever may occur first. Until By giving notice before the time this Agreement becomes effective effective, you, as aforesaidthe Representatives of the several Underwriters, it or the Company, may be terminated by 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 6(i) hereof.
(b) You may terminate this Agreement by notifying notice to the Underwriters or by Company and the Underwriters by notifying the Company. This Agreement may be terminated Selling Shareholders at any time after it becomes effective and at or prior to the Closing Date by you by written notice to the Company if any of the following has occurred: (i) in accordance with the last paragraph of Section 7 of this Agreement; or (ii) if there has been, since the respective dates as of which information is given in the Registration Statement, any material adverse change, or any development which might reasonably be viewed as resulting in a material adverse change in or affecting the assets, properties, results of operation, financial condition or business prospects of the Company, whether or not arising in the ordinary course of business, including without limitation, any failure of refusal for any reason of any Selling Shareholder to sell Shares in the Offering as contemplated in the Registration Statement and any preliminary prospectus disseminated in connection with the Offering; or (iii) if there has occurred or accelerated any outbreak or escalation of hostilities or other national or international calamity or crisis or change in economic or political conditions or in the effect of which on the financial markets of the United States or elsewhere thatis such as to make it, in your judgment, is material and adverse and would, in your judgment, make it impracticable to market the Securities on Shares or enforce contracts for the terms and sale of the Shares; or (iv) if trading in any securities of the manner contemplated in Company has been suspended by the ProspectusCommission or by the NASD or the Nasdaq National Market, or (ii) the suspension or material limitation of if trading in securities generally on the New York Stock Exchange, the American Stock Exchange or in the Nasdaq National Market over-the-counter market has been suspended, or limitation limitations on prices for trading (other than limitations on hours or numbers of days of trading) have been fixed, or maximum ranges for prices for securities on any have been required, by such exchange or the Nasdaq National Market NASD or (iii) the declaration by order of a banking moratorium by either federal or New York State authorities. 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 number 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 number of Securities to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, in the proportion which the number of Securities set forth opposite its name in Annex I bears to the total number of Securities 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 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 Securities which any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased pursuant to this Section 9 by an amount in excess of one-ninth of such number of Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs is more than one-tenth of the 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 Agreement will terminate without liability on the part of any non-defaulting Underwriter or the Company. 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 effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of any such Underwriter under this Agreement.the
Appears in 1 contract
Samples: Underwriting Agreement (Keystone Automotive Industries Inc)
Effective Date of Agreement and Termination. (a) This Agreement shall become effective upon the later of immediately as to Sections 6 and 8 and, as to all other provisions, (i) if at the time of execution of this AgreementAgreement the Registration Statement has not become effective, (ii) when notification of at 9:30 a.m. New York, New York time on the first full business day following the effectiveness of the Registration Statement has been released by the Commission and Statement, or (iiiii) if a post-effective amendment to at the time of execution of this Agreement the Registration Statement has been filed (including declared effective, at 9:30 a.m. New York, New York time on the first full business day following the date of execution of this Agreement; but this Agreement shall nevertheless become effective at such earlier time after the Registration Statement becomes effective as you may determine on and by notice to the Company and the Selling Stockholders or by release of any post-effective amendment required of the Shares for sale 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)public. For the purposes of this Section 10, the effectiveness Shares shall be deemed to have been so released upon the release of such post-effective amendment publication of any newspaper advertisement relating to the Shares or new upon the release by you of telegrams (i) advising the Underwriters that the Shares are released for public offering, or additional registration statement(ii) offering the Shares for sale to securities dealers, whichever may occur first. Until By giving notice before the time this Agreement becomes effective effective, you, as aforesaidrepresentative of the several Underwriters, it or the Company, may be terminated by 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 6 hereof and except that the provisions of Section 8 shall remain in effect.
(b) You may terminate this Agreement, by notifying notice to the Underwriters or by Company and the Underwriters by notifying the Company. This Agreement may be terminated Selling Stockholders, at any time after it becomes effective and at or prior to the Closing Date by you by written notice to the Company if any of the following has occurred: Time (i) in accordance with the penultimate paragraph of Section 7 of this Agreement, or (ii) if there has been since the respective dates as of which information is given in the Registration Statement, any 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 escalation of hostilities or other national or international calamity or crisis or change in economic or political conditions or in the effect of which on the financial markets of the United States or elsewhere thatis such as to make it, in your judgment, is material and adverse and would, in your judgment, make it impracticable to market the Securities on Shares or enforce contracts for the terms and in sale of the manner contemplated in the ProspectusShares, or (iiiv) the suspension or material limitation of if trading in any securities of the Company has been suspended by the Commission or by the Nasdaq Stock Market or if trading generally on the New York Stock Exchange, the American Stock Exchange or in the Nasdaq National Market over-the-counter market has been suspended, or limitation limitations on prices for trading (other than limitations on hours or numbers of days of trading) have been fixed, or maximum ranges for prices for securities on any have been required, by such exchange or the Nasdaq National Market NASD or by order of the Commission or any other governmental authority, or (iiiv) the declaration of if a banking moratorium has been declared by either federal or New York State or Tennessee authorities. If , 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 which in your reasonable opinion has a material adverse effect 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 number 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 number of Securities to be purchased on such date by all Underwriters, each non-defaulting Underwriter shall be obligated severally, securities markets in the proportion which the number of Securities set forth opposite its name in Annex I bears to the total number of Securities 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 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 Securities which any Underwriter has agreed to purchase pursuant to Section 2 hereof be increased United States.
(c) If this Agreement is terminated pursuant to this Section 9 by an amount in excess of one-ninth of 10, such number of Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters termination shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs is more than one-tenth of the 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 Agreement will terminate without liability on the part of any non-defaulting Underwriter or party to any other party, except to the Companyextent provided in Section 6. In Notwithstanding any such case which does not result termination, the provisions of Section 8 shall remain 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 effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of any such Underwriter under this Agreementeffect.
Appears in 1 contract
Samples: Underwriting Agreement (Superior Energy Services Inc)
Effective Date of Agreement and Termination. This Agreement shall become effective upon the later of (i) execution of this Agreement, (ii) when notification of the effectiveness of the Registration Statement has been released by the Commission immediately 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 only as follows:
(a) In the event that the minimum number of Shares are not sold by the Company by notifying the Underwriters or by the Underwriters by notifying the Company. Expiration Date as described in Section 4(a)(iv) hereof.
(b) This Agreement may be terminated at any time after it becomes effective and prior by BSFS by notice to the Closing Date Company in the event that the Company shall have failed or been unable to comply with any of the material terms, conditions or provisions of this Agreement on the part of the Company to be performed, complied with or fulfilled within the respective times herein provided for, unless compliance therewith or performance or satisfaction thereof shall have been expressly waived by you BSFS in writing.
(c) This Agreement may be terminated by written BSFS by notice to the Company if BSFS believes in its sole judgment that any adverse changes have occurred in the management of the following has occurred: Company, that material adverse changes have occurred in the financial condition, prospects or obligations of the Company or if the Company shall have sustained a loss by strike, fire, flood, accident or other calamity of such a character as, in the sole judgment of BSFS, may interfere materially with the conduct of the Company's business and operations regardless of whether or not such loss shall have been insured.
(d) This Agreement may be terminated by BSFS by notice to the Company at any time if, in the sole judgment of BSFS, payment for and delivery of the Shares is rendered impracticable or inadvisable because (i) any outbreak or escalation of hostilities or other national or international calamity or crisis or change additional material governmental restrictions not in economic conditions or in the financial markets of the United States or elsewhere that, in your judgment, is material force and adverse and would, in your judgment, make it impracticable to market the Securities effect on the terms and date hereof shall have been imposed upon the trading in securities generally, or minimum or maximum prices shall have been generally established on the manner contemplated New York or American Stock Exchange or the over-the-counter market, or trading in the Prospectussecurities generally on either such Exchange or over-the-counter market shall have been suspended, or a general moratorium shall have been established by federal or state authorities, or (ii) the suspension a war or material limitation of trading in securities on the New York Stock Exchangeother national calamity shall have occurred, the American Stock Exchange or the Nasdaq National Market or limitation on prices for securities on any such exchange or the Nasdaq National Market or (iii) substantial and material changes in the declaration of a banking moratorium by either federal or New York State authorities. If on the Closing Date, any one or more condition of the Underwriters shall fail market (either generally or refuse with reference 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, as the case may be, agreed but failed or refused to purchase is not more than one-tenth sale of the total number of Securities Shares to be purchased on offered hereby) beyond normal fluctuations are such date by all Underwritersthat it would be undesirable, each non-defaulting Underwriter impracticable or inadvisable in the sole judgment of BSFS to proceed with this Agreement or with the public offering, (iv) the DOC Order, the FDIC Order, or the Federal Reserve Board Approval shall have been withdrawn, rescinded, revoked or materially altered, or (v) of any matter materially adversely affecting the Company.
(e) In the event any action or proceeding shall be obligated severallyinstituted or threatened against BSFS, either in any court of competent jurisdiction, before the proportion which the number of Securities set forth opposite Commission or any state securities commission concerning its name in Annex I bears activities as a broker or dealer that would prevent BSFS from acting as such, at any time prior to the total number of Securities which all the non-defaulting Underwriters, as the case may be, have agreed to purchaseeffective date hereunder, or 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 Securities which any Underwriter has agreed to purchase court pursuant to Section 2 hereof be increased pursuant to this Section 9 by any federal, state, local or municipal statute, a petition in bankruptcy or insolvency or for reorganization or for the appointment of a receiver or trustee of BSFS's assets or if BSFS makes an amount in excess assignment for the benefit of one-ninth of such number of Securities without the written consent of such Underwriter. If on the Closing Date any Underwriter or Underwriters shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs is more than one-tenth of the 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 defaultcreditors, this Agreement will terminate without liability on the part of any non-defaulting Underwriter or the Company. In any such case which does not result in termination of this Agreement, either you or the Company shall have the right on three (3) days' written notice 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 effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of any such Underwriter under BSFS to terminate this Agreement.
(f) Any termination of this Agreement pursuant to this Section 8 shall be without liability of any character (including, but not limited to, loss of anticipated profits or consequential damages) on the part of any party thereto, except that in the event of a termination pursuant to paragraphs (a), (b), (c), or (d) of this Section 8, the Company will be responsible for BSFS's accountable expenses up to the maximum amount stated in Section 4(c), which shall include, but are not limited to, BSFS's counsel fees, consultants' fees, entertainment expenses, travel expenses, postage expenses, office costs, advertising costs, clerical costs, due diligence meeting expenses, duplication expenses, long-distance telephone expenses, and general and administrative expenses incurred in connection with the Offering whether or not the sale of the Shares by the Company is consummated.
Appears in 1 contract
