Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock hereunder on any Closing Date and the aggregate number of shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the Representatives and the Company for the purchase of such shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect.
Appears in 26 contracts
Samples: Underwriting Agreement (Ikena Oncology, Inc.), Underwriting Agreement (Clearfield, Inc.), Underwriting Agreement (G1 Therapeutics, Inc.)
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock Shares hereunder on the Closing Date or any Option Closing Date and the aggregate number of shares Shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares Shares to be purchased by all Underwriters on such Closing Date or Option Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares Shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date or Option Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares Shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares Shares to be purchased by all Underwriters on such Closing Date or Option Closing Date and arrangements satisfactory to the Representatives remaining Underwriters and the Company for the purchase of such shares Shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock Shares of a defaulting Underwriter or Underwriters on such Closing Date or Option Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date or Option Closing Date for a period of not more than five (5) full business days in order that to permit the Company may to effect whatever changes may thereby be made necessary in the Registration Statement or Statement, the Final Prospectus, or in any other documents or arrangements, which may thereby be made necessary, and the Company agrees to promptly to file any amendments to the Registration Statement or supplements to the Final Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares Shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the any other Underwriters Underwriter for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter Underwriters or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 Section 5(a)(viii) and 9 and the provisions of Section 7 and Sections 11 9 through 2117, inclusive, shall not terminate and shall remain in full force and effect.
Appears in 21 contracts
Samples: Underwriting Agreement (NutriBand Inc.), Underwriting Agreement (Abvc Biopharma, Inc.), Underwriting Agreement (Abvc Biopharma, Inc.)
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock hereunder on any Closing Date and the aggregate number of shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the Representatives and the Company for the purchase of such shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date Dates for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect.
Appears in 18 contracts
Samples: Underwriting Agreement (EyePoint Pharmaceuticals, Inc.), Underwriting Agreement (Cabaletta Bio, Inc.), Underwriting Agreement (EyePoint Pharmaceuticals, Inc.)
Substitution of Underwriters. If any Underwriter or defaults in its obligation to purchase the number of Securities which it has agreed to purchase under this Agreement, the non-defaulting Underwriters shall default in its or their obligations be obligated to purchase shares of Stock hereunder on any Closing Date and (in the aggregate respective proportions which the number of shares Securities set forth opposite the name of each non-defaulting Underwriter in Schedule I hereto bears to the total number of Securities set forth opposite the names of all the non-defaulting Underwriters in Schedule I hereto) the Securities which such the defaulting Underwriter agreed but failed to purchase (the “Default Securities”); except that the non-defaulting Underwriters shall not be obligated to purchase any of the Securities if the total number of Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (exceeds 10%) % of the total number of shares to be purchased by all Underwriters on such Closing DateFirm Securities, the other Underwriters and any non-defaulting Underwriter shall not be obligated severally, in proportion to their respective commitments hereunder, to purchase more than 110% of the shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased Securities set forth opposite its name in Schedule I attached hereto purchasable by all Underwriters on such Closing Date and arrangements satisfactory it pursuant to the Representatives and the Company for the purchase terms of such shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminateSection 3 hereof. If the remaining Underwriters or substituted Underwriters foregoing maximums are required hereby or agree to take up all or part of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10exceeded, (i) the Company non-defaulting Underwriters, and any other underwriters satisfactory to the Representatives who so agree, shall have the right right, but shall not be obligated, to postpone purchase (in such Closing Date for a period of not more than five (5proportions as may be agreed upon among them) full business days in order that all the Company may effect whatever changes may thereby be made necessary in Default Securities on the Registration Statement or terms contained herein. If the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining non-defaulting Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of underwriters satisfactory to the Representatives do not elect to purchase the Default Securities, this Agreement pursuant to this Section 10 shall be terminate without liability on the part of any non-defaulting Underwriter or the Company, Company except that for the representations, warranties, covenants, indemnities, agreements payment of expenses to be borne by the Company and other statements set forth the Underwriters as provided in Section 25 hereof and the indemnity and contribution agreements of the Company and the Underwriters contained in Section 7 hereof. Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have for damages caused by its default. If the other underwriters satisfactory to the Representatives are obligated or agree to purchase the Securities of a defaulting Underwriter, either the Representatives or the Company may postpone the First Closing Date for up to five full Business Days in order to effect any changes that may be necessary in the Registration Statement, the obligations Time of Sale Disclosure Package or the Prospectus or in any other document or agreement, and to file promptly any amendments or any supplements to the Registration Statement or the Time of Sale Disclosure Package or the Prospectus which in the Representatives’ opinion may thereby be made necessary. The term “Underwriter” as used in this Agreement shall include any party substituted under this Section 8 with like effect as if it had originally been a party to this Agreement with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effectSecurities.
Appears in 16 contracts
Samples: Underwriting Agreement (New York Mortgage Trust Inc), Underwriting Agreement (New York Mortgage Trust Inc), Underwriting Agreement (New York Mortgage Trust Inc)
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock Securities hereunder on the Closing Date or any Option Closing Date and the aggregate number of shares Securities which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten five percent (105%) of the total number of shares Securities to be purchased by all Underwriters on such Closing Date or Option Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares Securities which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date or Option Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares Securities with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares Securities to be purchased by all Underwriters on such Closing Date or Option Closing Date and arrangements satisfactory to the Representatives remaining Underwriters and the Company for the purchase of such shares Securities by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock Securities of a defaulting Underwriter or Underwriters on such Closing Date or Option Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date or Option Closing Date for a period of not more than five (5) full business days in order that to permit the Company may to effect whatever changes may thereby be made necessary in the Registration Statement or Statement, the Final Prospectus, or in any other documents or arrangements, which may thereby be made necessary, and the Company agrees to promptly to file any amendments to the Registration Statement or supplements to the Final Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares Securities to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the any other Underwriters Underwriter for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter Underwriters or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 Section 5(a)(viii) and 9 and the provisions of Section 7 and Sections 11 9 through 2117, inclusive, shall not terminate and shall remain in full force and effect.
Appears in 15 contracts
Samples: Underwriting Agreement (Kindly MD, Inc.), Underwriting Agreement (60 Degrees Pharmaceuticals, Inc.), Underwriting Agreement (RanMarine Technology B.V.)
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock Public Units hereunder on any Closing Date and the aggregate number of shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares Units to be purchased by all Underwriters on such Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares Units which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares Units with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares Units to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the Representatives and the Company for the purchase of such shares Units by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock Public Units of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, necessary and (ii) the respective numbers of shares Units to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect.
Appears in 14 contracts
Samples: Underwriting Agreement (Roth CH Acquisition v Co.), Underwriting Agreement (Roth CH Acquisition v Co.), Underwriting Agreement (Roth CH Acquisition v Co.)
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock hereunder on any Closing Date and the aggregate number of shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Dateunderwritten, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Datepurchase. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date underwritten and arrangements satisfactory to the Representatives and the Company for the purchase of such shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such the Closing Date Dates for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 and except the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect.
Appears in 12 contracts
Samples: Underwriting Agreement (Achillion Pharmaceuticals Inc), Underwriting Agreement (Zonagen Inc), Underwriting Agreement (Achillion Pharmaceuticals Inc)
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock hereunder on any Closing Date and the aggregate number of shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the Representatives Representative and the Company for the purchase of such shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect.
Appears in 11 contracts
Samples: Underwriting Agreement (American Superconductor Corp /De/), Underwriting Agreement (AppHarvest, Inc.), Underwriting Agreement (American Superconductor Corp /De/)
Substitution of Underwriters. If any Underwriter or Underwriters shall default fail to take up and pay for the number of Firm Shares agreed by such Underwriter or Underwriters to be purchased hereunder upon tender of such Firm Shares in its accordance with the terms hereof, and if the aggregate number of Firm Shares which such defaulting Underwriter or their obligations Underwriters so agreed but failed to purchase shares does not exceed 10% of Stock hereunder on the Firm Shares, the remaining Underwriters shall be obligated, severally in proportion to their respective commitments hereunder, to take up and pay for the Firm Shares of such defaulting Underwriter or Underwriters. If any Closing Date Underwriter or Underwriters so defaults and the aggregate number of shares Firm Shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (take up and pay for exceeds 10%) % of the total number Firm Shares, the remaining Underwriters shall have the right, but shall not be obligated, to take up and pay for (in such proportions as may be agreed upon among them) the Firm Shares which the defaulting Underwriter or Underwriters so agreed but failed to purchase. If such remaining Underwriters do not, at the Closing Date, take up and pay for the Firm Shares which the defaulting Underwriter or Underwriters so agreed but failed to purchase, the Closing Date shall be postponed for twenty-four (24) hours to allow the several Underwriters the privilege of shares substituting within twenty-four (24) hours (including non-business hours) another underwriter or underwriters (which may include any nondefaulting Underwriter) satisfactory to be purchased the Company. If no such underwriter or underwriters shall have been substituted as aforesaid by all Underwriters on such postponed Closing Date, the other Underwriters shall Closing Date may, at the option of the Company, be obligated severallypostponed for a further twenty-four (24) hours, in proportion if necessary, to their respective commitments hereunderallow the Company the privilege of finding another underwriter or underwriters, satisfactory to you, to purchase the shares Firm Shares which such the defaulting Underwriter or Underwriters so agreed but failed to purchase on such Closing Datepurchase. If any Underwriter or Underwriters it shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the Representatives and the Company arranged for the purchase of such shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby underwriter or agree underwriters to take up all or part the Firm Shares of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date the time of delivery for a period of not more than five seven (57) full business days days, in order that the Company may to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or Statement, supplements to the Prospectus or other such documents which may thereby be made necessary, and (ii) the respective numbers number of shares Firm Shares to be purchased by the remaining Underwriters and substituted underwriter or substituted Underwriters underwriters shall be taken as the basis of their underwriting obligation obligation. If the remaining Underwriters shall not take up and pay for all purposes of this Agreement. Nothing herein contained shall relieve any such Firm Shares so agreed to be purchased by the defaulting Underwriter of its liability to or Underwriters or substitute another underwriter or underwriters as aforesaid and the Company shall not find or shall not elect to seek another underwriter or underwriters for such Firm Shares as aforesaid, then this Agreement shall terminate. In the other Underwriters for damages occasioned by its default hereunder. Any event of any termination of this Agreement pursuant to the preceding paragraph of this Section 10 10, neither the Company nor any Selling Stockholder shall be without liability on liable to any Underwriter (except as provided in Sections 5 and 8 hereof) nor shall any Underwriter (other than an Underwriter who shall have failed, otherwise than for some reason permitted under this Agreement, to purchase the part number of any non-defaulting Firm Shares agreed by such Underwriter or to be purchased hereunder, which Underwriter shall remain liable to the Company, the Selling Stockholders and the other Underwriters for damages, if any, resulting from such default) be liable to the Company or any Selling Stockholder (except that to the representations, warranties, covenants, indemnities, agreements and other statements set forth extent provided in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect8 hereof).
Appears in 11 contracts
Samples: Underwriting Agreement (Anesta Corp /De/), Underwriting Agreement (Omtool LTD), Underwriting Agreement (Broadvision Inc)
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock Shares hereunder on the Closing Date or any Option Closing Date and the aggregate number of shares Shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten five percent (105%) of the total number of shares Shares to be purchased by all Underwriters on such Closing Date or Option Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares Shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date or Option Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares Shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares Shares to be purchased by all Underwriters on such Closing Date or Option Closing Date and arrangements satisfactory to the Representatives remaining Underwriters and the Company for the purchase of such shares Shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock Shares of a defaulting Underwriter or Underwriters on such Closing Date or Option Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date or Option Closing Date for a period of not more than five (5) full business days in order that to permit the Company may to effect whatever changes may thereby be made necessary in the Registration Statement or Statement, the Final Prospectus, or in any other documents or arrangements, which may thereby be made necessary, and the Company agrees to promptly to file any amendments to the Registration Statement or supplements to the Final Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares Shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the any other Underwriters Underwriter for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter Underwriters or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 Section 5(a)(viii) and 9 and the provisions of Section 7 and Sections 11 9 through 2117, inclusive, shall not terminate and shall remain in full force and effect.
Appears in 10 contracts
Samples: Underwriting Agreement (BullFrog AI Holdings, Inc.), Underwriting Agreement (BullFrog AI Holdings, Inc.), Underwriting Agreement (BullFrog AI Holdings, Inc.)
Substitution of Underwriters. (a) If any Underwriter or Underwriters shall default fail to take up and pay for the principal amount of Bonds agreed by such Underwriter or Underwriters to be purchased hereunder, upon tender of such Bonds in its or their obligations to purchase shares of Stock hereunder on any Closing Date accordance with the terms hereof, and the principal amount of Bonds not purchased does not aggregate number more than 10% of shares the aggregate principal amount of the Bonds, the remaining Underwriters shall be obligated to take up and pay for (in proportion to their respective commitments hereunder except as may otherwise be determined by you) the Bonds which any withdrawing or defaulting Underwriters agreed but failed to purchase; however, if such Bonds not purchased aggregate more than 10% of the aggregate principal amount of the Bonds, the remaining Underwriters shall have the right, but shall not be obligated, to take up and pay for (in such proportions as shall be determined by you) the Bonds which the defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of purchase. If such remaining Underwriters do not, at the total number of shares to be purchased by all Underwriters on such Closing Date, take up and pay for the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase Bonds which the shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Datepurchase, the time for delivery of the Bonds shall be extended to the next business day to allow the several Underwriters the privilege of substituting within 24 hours (including non-business hours) another underwriter or underwriters satisfactory to the Company. If any no such underwriter or underwriters shall have been substituted, as aforesaid, the time for delivery of the Bonds may, at the option of the Company, be again extended to the next following business day, if necessary, to allow the Company the privilege of finding within 24 hours (including non-business hours) another underwriter or underwriters, satisfactory to you, to purchase the Bonds which the defaulting Underwriter or Underwriters agreed but failed to purchase. If the remaining Underwriters shall so default not take up and the aggregate number of shares with respect to which pay for all such default or defaults occur is more than ten percent (10%) of the total number of shares Bonds agreed to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the Representatives defaulting Underwriters, or substitute another underwriter or underwriters as aforesaid, and the Company shall not find or shall not elect to seek another underwriter or underwriters for the purchase of such shares by other persons are not made within forty-eight (48) hours after such defaultBonds as aforesaid, then this Agreement shall terminate. If In the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part event of the shares of Stock of a defaulting Underwriter or Underwriters on any such Closing Date as provided in this Section 10, (i) termination the Company shall have the right not be under any liability to postpone such Closing Date for a period of not more than five any Underwriter (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments except to the Registration Statement or supplements extent provided in Section 4(n) and in Section 6 hereof), nor shall any Underwriter (other than an Underwriter who shall have failed, otherwise than for some reason permitted under this Agreement, to purchase the Prospectus which may thereby be made necessary, and (ii) the respective numbers principal amount of shares Bonds agreed by such Underwriter to be purchased by the remaining Underwriters or substituted Underwriters shall hereunder) be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve under any defaulting Underwriter of its liability to the Company or (except to the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth extent provided in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect6 hereof).
Appears in 9 contracts
Samples: Underwriting Agreement (South Carolina Electric & Gas Co), Underwriting Agreement (South Carolina Electric & Gas Co), Underwriting Agreement (South Carolina Electric & Gas Co)
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock Firm Units hereunder on the Closing Date or the Option Shares or Option Warrants on any Option Closing Date and the aggregate number of shares Firm Units or Option Shares or Option Warrants which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares Firm Units or Option Shares or Option Warrants to be purchased by all Underwriters on such Closing Date or Option Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares Firm Units or Option Shares or Option Warrants, respectively, which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date or Option Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares Firm Units with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares Firm Units to be purchased by all Underwriters on such Closing Date or is more than ten percent (10%) of the total number of Option Shares or Option Warrants on such Option Closing Date and arrangements satisfactory to the Representatives remaining Underwriters and the Company for the purchase of such shares Firm Units or Option Shares or Option Warrants by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock Firm Units or Option Shares or Option Warrants of a defaulting Underwriter or Underwriters on such Closing Date or Option Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date or Option Closing Date for a period of not more than five (5) full business days Business Days in order that to permit the Company may to effect whatever changes may thereby be made necessary in the Registration Statement or Statement, the Final Prospectus, or in any other documents or arrangements, which may thereby be made necessary, and the Company agrees to promptly to file any amendments to the Registration Statement or supplements to the final Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares Firm Units or Option Shares or Option Warrants to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the any other Underwriters Underwriter for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter Underwriters or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 Section 5(a)(viii) and 9 and the provisions of Section 7 and Sections 11 9 through 2117, inclusive, shall not terminate and shall remain in full force and effect.
Appears in 8 contracts
Samples: Underwriting Agreement (Docola, Inc.), Underwriting Agreement (bioAffinity Technologies, Inc.), Underwriting Agreement (bioAffinity Technologies, Inc.)
Substitution of Underwriters. If any Underwriter or defaults in its obligation to purchase the number of Securities which it has agreed to purchase under this Agreement, the non-defaulting Underwriters shall default in its or their obligations be obligated to purchase shares of Stock hereunder on any Closing Date and (in the aggregate respective proportions which the number of shares Securities set forth opposite the name of each non-defaulting Underwriter in Schedule I hereto bears to the total number of Securities set forth opposite the names of all the non- defaulting Underwriters in Schedule I hereto) the Securities which such the defaulting Underwriter agreed but failed to purchase; except that the non-defaulting Underwriters shall not be obligated to purchase any of the Securities if the total number of Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (exceeds 10%) % of the total number of shares to be purchased by all Underwriters on such Closing DateFirm Securities, the other Underwriters and any non-defaulting Underwriter shall not be obligated severallyto purchase more than 110% of the number of Securities set forth opposite its name in Schedule I hereto purchasable by it pursuant to the terms of Section 3 hereof. If the foregoing maximums are exceeded, in proportion (i) the non-defaulting Underwriters, and any other underwriters satisfactory to their respective commitments hereunderthe Representative who so agree, shall have the right, but shall not be obligated, to purchase (in such proportions as may be agreed upon among them) all the shares Securities. If the non- defaulting Underwriters or the other underwriters satisfactory to the Representative do not elect to purchase the Securities which such the defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the Representatives and the Company for the purchase of such shares by other persons are not made within forty-eight (48) hours after such defaultpurchase, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be terminate without liability on the part of any non-defaulting Underwriter or the Company, Company except that for the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to payment of expenses to be paid or reimbursed pursuant to Sections 5 and 9 borne by the Company and the provisions Underwriters as provided in Section 5 hereof and the indemnity and contribution agreements of the Company and the Underwriters contained in Section 7 hereof. Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have for damages caused by its default. If the other underwriters satisfactory to the Representative are obligated or agree to purchase the Securities of a defaulting Underwriter, either the Representative or the Company may postpone the First Closing Date for up to five full Business Days in order to effect any changes that may be necessary in the Registration Statement, the Disclosure Package or the Prospectus or in any other document or agreement, and Sections 11 through 21, inclusive, shall not terminate and shall remain to file promptly any amendments or any supplements to the Registration Statement or the Disclosure Package or the Prospectus which in full force and effectthe Representative’s opinion may thereby be made necessary.
Appears in 8 contracts
Samples: Underwriting Agreement (Celsius Holdings, Inc.), Underwriting Agreement (Celsius Holdings, Inc.), Underwriting Agreement (Iaso Pharma Inc)
Substitution of Underwriters. If any Underwriter or defaults in its obligation to purchase the number of Securities which it has agreed to purchase under this Agreement, the non-defaulting Underwriters shall default in its or their obligations be obligated to purchase shares of Stock hereunder on any Closing Date and (in the aggregate respective proportions which the number of shares Securities set forth opposite the name of each non-defaulting Underwriter in Schedule I hereto bears to the total number of Securities set forth opposite the names of all the non-defaulting Underwriters in Schedule I hereto) the Securities which such the defaulting Underwriter agreed but failed to purchase; except that the non-defaulting Underwriters shall not be obligated to purchase any of the Securities if the total number of Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (exceeds 10%) % of the total number of shares to be purchased by all Underwriters on such Closing DateFirm Securities, the other Underwriters and any non-defaulting Underwriter shall not be obligated severallyto purchase more than 110% of the number of Securities set forth opposite its name in Schedule I hereto purchasable by it pursuant to the terms of Section 4 hereof. If the foregoing maximums are exceeded, in proportion (i) the non-defaulting Underwriters, and any other underwriters satisfactory to their respective commitments hereunderthe Representatives who so agree, shall have the right, but shall not be obligated, to purchase (in such proportions as may be agreed upon among them) all the shares Securities. If the non-defaulting Underwriters or the other underwriters satisfactory to the Representatives do not elect to purchase the Securities which such the defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the Representatives and the Company for the purchase of such shares by other persons are not made within forty-eight (48) hours after such defaultpurchase, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be terminate without liability on the part of any non-defaulting Underwriter or the Company, Company except that for the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to payment of expenses to be paid or reimbursed pursuant to Sections 5 and 9 borne by the Company and the provisions Underwriters as provided in Section 5 hereof and the indemnity and contribution agreements of the Company and the Underwriters contained in Section 7 8 hereof. Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have for damages caused by its default. If the other underwriters satisfactory to the Representatives are obligated or agree to purchase the Securities of a defaulting Underwriter, either the Representatives or the Company may postpone the First Closing Date for up to five full Business Days in order to effect any changes that may be necessary in the Registration Statement, the Time of Sale Disclosure Package or the Prospectus or in any other document or agreement, and Sections 11 through 21, inclusive, shall not terminate and shall remain to file promptly any amendments or any supplements to the Registration Statement or the Time of Sale Disclosure Package or the Prospectus which in full force and effectthe Representatives' opinion may thereby be made necessary.
Appears in 7 contracts
Samples: Underwriting Agreement (Armour Residential REIT, Inc.), Underwriting Agreement (Armour Residential REIT, Inc.), Armour Residential (Armour Residential REIT, Inc.)
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock hereunder on any Closing Date and the aggregate number of shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the Representatives and the Company for the purchase of such shares by other persons are not made within forty-eight forty‑eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date Dates for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting non‑defaulting Underwriter or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect.
Appears in 6 contracts
Samples: Underwriting Agreement (Rocket Pharmaceuticals, Inc.), Underwriting Agreement (EyePoint Pharmaceuticals, Inc.), Underwriting Agreement (Rocket Pharmaceuticals, Inc.)
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock Shares hereunder on the Closing Date or any Option Closing Date and the aggregate number of shares Shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares Shares to be purchased by all Underwriters on such Closing Date or Option Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares Shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date or Option Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares Shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares Shares to be purchased by all Underwriters on such Closing Date or Option Closing Date and arrangements satisfactory to the Representatives remaining Underwriters and the Company for the purchase of such shares Shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock Shares of a defaulting Underwriter or Underwriters on such Closing Date or Option Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date or Option Closing Date for a period of not more than five (5) full business days in order that to permit the Company may to effect whatever changes may thereby be made necessary in the Registration Statement or Statement, the Final Prospectus, or in any other documents or arrangements, which may thereby be made necessary, and the Company agrees to promptly to file any amendments to the Registration Statement or supplements to the Final Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares Shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the any other Underwriters Underwriter for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter Underwriters or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 22 and 3, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections Section 5 and 9 and the provisions of Section 5(a)(viii) and Section 7 and Sections 11 9 through 2117, inclusive, shall not terminate and shall remain in full force and effect.
Appears in 6 contracts
Samples: Underwriting Agreement (Avinger Inc), Underwriting Agreement (Trxade Group, Inc.), Underwriting Agreement (Avinger Inc)
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock hereunder on any Closing Date and the aggregate number of shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the Representatives Representative and the Company for the purchase of such shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date Dates for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect.
Appears in 6 contracts
Samples: Underwriting Agreement (Emcore Corp), Underwriting Agreement (Cytosorbents Corp), Underwriting Agreement (Alimera Sciences Inc)
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock Shares hereunder on the Closing Date or any Option Closing Date and the aggregate number of shares Shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares Shares to be purchased by all Underwriters on such Closing Date or Option Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares Shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date or Option Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares Shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares Shares to be purchased by all Underwriters on such Closing Date or Option Closing Date and arrangements satisfactory to the Representatives remaining Underwriters and the Company for the purchase of such shares Shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock Shares of a defaulting Underwriter or Underwriters on such Closing Date or Option Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date or Option Closing Date for a period of not more than five (5) full business days in order that to permit the Company may to effect whatever changes may thereby be made necessary in the Registration Statement or Statement, the Final Prospectus, or in any other documents or arrangements, which may thereby be made necessary, and the Company agrees to promptly to file any amendments to the Registration Statement or supplements to the Final Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares Shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the any other Underwriters Underwriter for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter Underwriters or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 22 and 3, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections Section 5 and 9 and the provisions of Section 7 5(a)(viii) and Section 9 and Sections 11 through 2118, inclusive, shall not terminate and shall remain in full force and effect. As used in this Agreement, the term “Underwriter” shall be deemed to include any person substituted for a defaulting Underwriter under this Section 10. Any action taken under this Section 10 shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.
Appears in 6 contracts
Samples: Underwriting Agreement (Hoth Therapeutics, Inc.), Underwriting Agreement (Flux Power Holdings, Inc.), Underwriting Agreement (Flux Power Holdings, Inc.)
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations obligation to purchase shares of Stock the Notes which it has agreed to purchase hereunder on any Closing Date and the aggregate number principal amount of shares such Notes which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) % of the total number principal amount of shares Notes, the non-defaulting Underwriters may make arrangements satisfactory to be purchased the Company for the purchase of the aggregate principal amount of such Notes by all Underwriters on other persons, including any of the non-defaulting Underwriters, but if no such arrangements are made by the Closing Date, the other non-defaulting Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares which Notes that such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Datepurchase. If any Underwriter or Underwriters shall so default and the aggregate number principal amount of shares Notes with respect to which such default or defaults occur is more than ten percent (exceeds 10%) % of the total number principal amount of shares to be purchased by all Underwriters on such Closing Date Notes and arrangements satisfactory to the Representatives non-defaulting Underwriters and the Company for the purchase of such shares Notes by other persons are not made within forty-eight (48) 36 hours after such default, this Agreement shall agreement will terminate. If the remaining non-defaulting Underwriter or Underwriters or substituted Underwriters underwriter or underwriters are required hereby or agree to take up all or part of the shares Notes of Stock of a the defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 108, (i) the Company shall have the right to postpone such the Closing Date for a period of not more than five (5) full business days days, in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement Statement, Pricing Disclosure Package or the Prospectus, Prospectus or in any other documents or arrangements, and the Company agrees to promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers aggregate principal amount of shares to be purchased by Notes which the remaining non-defaulting Underwriters or substituted Underwriters purchaser or purchasers shall thereafter be obligated to purchase shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other non-defaulting Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 8 shall be without liability on the part of any the non-defaulting Underwriter Underwriters or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth than as provided in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect10.
Appears in 6 contracts
Samples: Centerpoint Energy Resources Corp, Centerpoint Energy Inc, Centerpoint Energy Resources Corp
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock hereunder on any Closing Date and the aggregate number of shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the Representatives and the Company for the purchase of such shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement Statements or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement Statements or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect.
Appears in 6 contracts
Samples: Underwriting Agreement (Regado Biosciences Inc), Underwriting Agreement (Regado Biosciences Inc), Underwriting Agreement (Fate Therapeutics Inc)
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock hereunder on any Closing Date and the aggregate number of shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the Representatives and the Company for the purchase of such shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement Statements or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement Statements or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed to non-defaulting Underwriters pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect.
Appears in 5 contracts
Samples: Underwriting Agreement (CymaBay Therapeutics, Inc.), Underwriting Agreement (CymaBay Therapeutics, Inc.), Underwriting Agreement (CymaBay Therapeutics, Inc.)
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock Public Units hereunder on any Closing Date and the aggregate number of shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares Units to be purchased by all Underwriters on such Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares Units which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares Units with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares Units to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the Representatives Representative and the Company for the purchase of such shares Units by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock Public Units of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date for a period of not more than five three (53) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, necessary and (ii) the respective numbers of shares Units to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect.
Appears in 5 contracts
Samples: Underwriting Agreement (ION Acquisition Corp 1 Ltd.), Underwriting Agreement (ION Acquisition Corp 1 Ltd.), Underwriting Agreement (ION Acquisition Corp 1 Ltd.)
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock hereunder on any the Closing Date and the aggregate number of shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares to be purchased by all Underwriters on such the Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunderset forth on Schedule I hereto, to purchase the shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such the Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such the Closing Date and arrangements satisfactory to the Representatives Representative and the Company for the purchase of such shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock of a defaulting Underwriter or Underwriters on such the Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such the Closing Date for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed to non-defaulting Underwrtiers pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect, and provided that any such termination shall not relieve a defaulting Underwriter from liability for its default.
Appears in 5 contracts
Samples: Underwriting Agreement (ONCOSEC MEDICAL Inc), Underwriting Agreement (Matinas BioPharma Holdings, Inc.), Underwriting Agreement (Matinas BioPharma Holdings, Inc.)
Substitution of Underwriters. If any Underwriter or Underwriters ---------------------------- shall default fail to take up and pay for the number of Firm Shares agreed by such Underwriter or Underwriters to be purchased hereunder upon tender of such Firm Shares in its accordance with the terms hereof, and if the aggregate number of Firm Shares which such defaulting Underwriter or their obligations Underwriters so agreed but failed to purchase shares does not exceed 10% of Stock hereunder on the Firm Shares, the remaining Underwriters shall be obligated, severally in proportion to their respective commitments hereunder, to take up and pay for the Firm Shares of such defaulting Underwriter or Underwriters. If any Closing Date Underwriter or Underwriters so defaults and the aggregate number of shares Firm Shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (take up and pay for exceeds 10%) % of the total number Firm Shares, the remaining Underwriters shall have the right, but shall not be obligated, to take up and pay for (in such proportions as may be agreed upon among them) the Firm Shares which the defaulting Underwriter or Underwriters so agreed but failed to purchase. If such remaining Underwriters do not, at the Closing Date, take up and pay for the Firm Shares which the defaulting Underwriter or Underwriters so agreed but failed to purchase, the Closing Date shall be postponed for twenty- four (24) hours to allow the several Underwriters the privilege of shares substituting within twenty-four (24) hours (including non-business hours) another underwriter or underwriters (which may include any nondefaulting Underwriter) satisfactory to be purchased the Company. If no such underwriter or underwriters shall have been substituted as aforesaid by all Underwriters on such postponed Closing Date, the other Underwriters shall Closing Date may, at the option of the Company, be obligated severallypostponed for a further twenty-four (24) hours, in proportion if necessary, to their respective commitments hereunderallow the Company the privilege of finding another underwriter or underwriters, satisfactory to you, to purchase the shares Firm Shares which such the defaulting Underwriter or Underwriters so agreed but failed to purchase on such Closing Datepurchase. If any Underwriter or Underwriters it shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the Representatives and the Company arranged for the purchase of such shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby underwriter or agree underwriters to take up all or part the Firm Shares of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date the time of delivery for a period of not more than five seven (57) full business days days, in order that the Company may to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or Statement, supplements to the Prospectus or other such documents which may thereby be made necessary, and (ii) the respective numbers number of shares Firm Shares to be purchased by the remaining Underwriters and substituted underwriter or substituted Underwriters underwriters shall be taken as the basis of their underwriting obligation obligation. If the remaining Underwriters shall not take up and pay for all purposes of this Agreement. Nothing herein contained shall relieve any such Firm Shares so agreed to be purchased by the defaulting Underwriter of its liability to or Underwriters or substitute another underwriter or underwriters as aforesaid and the Company shall not find or shall not elect to seek another underwriter or underwriters for such Firm Shares as aforesaid, then this Agreement shall terminate. In the other Underwriters for damages occasioned by its default hereunder. Any event of any termination of this Agreement pursuant to the preceding paragraph of this Section 10 10, neither the Company nor any Selling Stockholder shall be without liability on liable to any Underwriter (except as provided in Sections 5 and 8 hereof) nor shall any Underwriter (other than an Underwriter who shall have failed, otherwise than for some reason permitted under this Agreement, to purchase the part number of any non-defaulting Firm Shares agreed by such Underwriter or to be purchased hereunder, which Underwriter shall remain liable to the Company, the Selling Stockholders and the other Underwriters for damages, if any, resulting from such default) be liable to the Company or any Selling Stockholder (except that to the representations, warranties, covenants, indemnities, agreements and other statements set forth extent provided in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect8 hereof).
Appears in 5 contracts
Samples: Underwriting Agreement (Software Ag Systems Inc), Underwriting Agreement (Applied Micro Circuits Corp), Underwriting Agreement (Pervasive Software Inc)
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock hereunder on any Closing Date and the aggregate number of shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date Date, and arrangements satisfactory to the Representatives and the Company for the purchase of such shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date Date, as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date Date, for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect.
Appears in 5 contracts
Samples: Underwriting Agreement (Aura Biosciences, Inc.), Underwriting Agreement (Aura Biosciences, Inc.), Underwriting Agreement (Avidity Biosciences, Inc.)
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase the shares of Stock Offered Securities hereunder on any Closing Date Date, and the aggregate number of shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date Date, and arrangements satisfactory to the Representatives Representative and the Company for the purchase of such shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock Offered Securities of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date Dates for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement or Statement, the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect.
Appears in 5 contracts
Samples: Underwriting Agreement, Underwriting Agreement (Tiziana Life Sciences PLC), Underwriting Agreement (Tiziana Life Sciences PLC)
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock Public Units hereunder on any Closing Date and the aggregate number of shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares Units to be purchased by all Underwriters on such Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares Units which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares Units with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares Units to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the Representatives Representative and the Company for the purchase of such shares Units by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock Public Units of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, necessary and (ii) the respective numbers of shares Units to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect.
Appears in 5 contracts
Samples: Underwriting Agreement (Monocle Acquisition Corp), Underwriting Agreement (Monocle Acquisition Corp), Underwriting Agreement (Andina Acquisition Corp. III)
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations obligation to purchase shares of Stock the Notes which it has agreed to purchase hereunder on any Closing Date and the aggregate number principal amount of shares such Notes which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) % of the total number principal amount of shares Notes, the non defaulting Underwriters may make arrangements satisfactory to be purchased the Company for the purchase of the aggregate principal amount of such Notes by all Underwriters on other persons, including any of the non defaulting Underwriters, but if no such arrangements are made by the Closing Date, the other non defaulting Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares which Notes that such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Datepurchase. If any Underwriter or Underwriters shall so default and the aggregate number principal amount of shares Notes with respect to which such default or defaults occur is more than ten percent (exceeds 10%) % of the total number principal amount of shares to be purchased by all Underwriters on such Closing Date Notes and arrangements satisfactory to the Representatives non defaulting Underwriters and the Company for the purchase of such shares Notes by other persons are not made within forty-eight (48) 36 hours after such default, this Agreement shall agreement will terminate. If the remaining non defaulting Underwriter or Underwriters or substituted Underwriters underwriter or underwriters are required hereby or agree to take up all or part of the shares Notes of Stock of a the defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 109, (i) the Company shall have the right to postpone such the Closing Date for a period of not more than five (5) full business days days, in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, Prospectus or in any other documents or arrangements, and the Company agrees to promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers aggregate principal amount of shares to be purchased by Notes which the remaining non defaulting Underwriters or substituted Underwriters purchaser or purchasers shall thereafter be obligated to purchase shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other non defaulting Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 9 shall be without liability on the part of any non-the non defaulting Underwriter Underwriters or the Company, except that the representations, warranties, covenants, indemnities, agreements other than as provided in Sections 8 and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect11.
Appears in 5 contracts
Samples: Cigna Corp, Cigna Corp, Cigna Corp
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock Shares hereunder on the Closing Date or any Option Closing Date and the aggregate number of shares Shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares Shares to be purchased by all Underwriters on such Closing Date or Option Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares Shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date or Option Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares Shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares Shares to be purchased by all Underwriters on such Closing Date or Option Closing Date and arrangements satisfactory to the Representatives remaining Underwriters and the Company for the purchase of such shares Shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock Shares of a defaulting Underwriter or Underwriters on such Closing Date or Option Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date or Option Closing Date for a period of not more than five (5) full business days in order that to permit the Company may to effect whatever changes may thereby be made necessary in the Registration Statement or Statement, the Final Prospectus, or in any other documents or arrangements, which may thereby be made necessary, and the Company agrees to promptly to file any amendments to the Registration Statement or supplements to the Final Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares Shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the any other Underwriters Underwriter for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter Underwriters or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 22 and 3, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections Section 5 and 9 and the provisions of Section 7 5(a)(viii) and Section 9 and Sections 11 through 2119, inclusive, shall not terminate and shall remain in full force and effect. As used in this Agreement, the term “Underwriter” shall be deemed to include any person substituted for a defaulting Underwriter under this Section 10. Any action taken under this Section 10 shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.
Appears in 5 contracts
Samples: Underwriting Agreement (Centrus Energy Corp), Underwriting Agreement (Digital Ally Inc), Underwriting Agreement (Giga Tronics Inc)
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock Shares hereunder on any the Closing Date and the aggregate number of shares Shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares Shares to be purchased by all Underwriters on such Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares Shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares Shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares Shares to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the Representatives remaining Underwriters and the Company for the purchase of such shares Shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock Shares of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date for a period of not more than five (5) full business days in order that to permit the Company may to effect whatever changes may thereby be made necessary in the Registration Statement or Statement, the Final Prospectus, or in any other documents or arrangements, which may thereby be made necessary, and the Company agrees to promptly to file any amendments to the Registration Statement or supplements to the Final Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares Shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the any other Underwriters Underwriter for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter Underwriters or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 Section 5(a)(viii) and 9 and the provisions of Section 7 and Sections 11 9 through 2117, inclusive, shall not terminate and shall remain in full force and effect.
Appears in 5 contracts
Samples: Underwriting Agreement (JBDI Holdings LTD), Underwriting Agreement (JBDI Holdings LTD), Underwriting Agreement (Roma Green Finance LTD)
Substitution of Underwriters. (a) If any Underwriter or Underwriters shall default fail to take up and pay for the principal amount of Bonds agreed by such Underwriter or Underwriters to be purchased hereunder, upon tender of such Bonds in its or their obligations to purchase shares of Stock hereunder on any Closing Date accordance with the terms hereof, and the principal amount of Bonds not purchased does not aggregate number more than 10% of shares the aggregate principal amount of the Bonds, the remaining Underwriters shall be obligated to take up and pay for (in proportion to their respective commitments hereunder except as may otherwise be determined by you) the Bonds which any withdrawing or defaulting Underwriters agreed but failed to purchase; however, if such Bonds not purchased aggregate more than 10% of the aggregate principal amount of the Bonds, the remaining Underwriters shall have the right, but shall not be obligated, to take up and pay for (in such proportions as shall be determined by you) the Bonds which the defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of purchase. If such remaining Underwriters do not, at the total number of shares to be purchased by all Underwriters on such Closing Date, take up and pay for the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase Bonds which the shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Datepurchase, the time for delivery of the Bonds shall be extended to the next business day to allow the several Underwriters the privilege of substituting within 24 hours (including non-business hours) another underwriter or underwriters satisfactory to the Company. If any no such underwriter or underwriters shall have been substituted, as aforesaid, the time for delivery of the Bonds may, at the option of the Company, be again extended to the next following business day, if necessary, to allow the Company the privilege of finding within 24 hours (including non-business hours) another underwriter or underwriters, satisfactory to you, to purchase the Bonds which the defaulting Underwriter or Underwriters agreed but failed to purchase. If the remaining Underwriters shall so default not take up and the aggregate number of shares with respect to which pay for all such default or defaults occur is more than ten percent (10%) of the total number of shares Bonds agreed to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the Representatives defaulting Underwriters, or substitute another underwriter or underwriters as aforesaid, and the Company shall not find or shall not elect to seek another underwriter or underwriters for the purchase of such shares by other persons are not made within forty-eight (48) hours after such defaultBonds as aforesaid, then this Agreement shall terminate. If In the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part event of the shares of Stock of a defaulting Underwriter or Underwriters on any such Closing Date as provided in this Section 10, (i) termination the Company shall have the right not be under any liability to postpone such Closing Date for a period of not more than five any Underwriter (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments except to the Registration Statement or supplements extent provided in Section 4(h) and in Section 6 hereof), nor shall any Underwriter (other than an Underwriter who shall have failed, otherwise than for some reason permitted under this Agreement, to purchase the Prospectus which may thereby be made necessary, and (ii) the respective numbers principal amount of shares Bonds agreed by such Underwriter to be purchased by the remaining Underwriters or substituted Underwriters shall hereunder) be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve under any defaulting Underwriter of its liability to the Company or (except to the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth extent provided in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect6 hereof).
Appears in 5 contracts
Samples: South Carolina Electric & Gas Co, South Carolina Electric & Gas Co, South Carolina Electric & Gas Co
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock hereunder on any the Closing Date and the aggregate number of shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares to be purchased by all Underwriters on such the Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunderset forth on Schedule I hereto, to purchase the shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such the Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such the Closing Date and arrangements satisfactory to the Representatives Representative and the Company for the purchase of such shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock of a defaulting Underwriter or Underwriters on such the Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such the Closing Date for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement Statements or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement Statements or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed to non-defaulting Underwrtiers pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect.
Appears in 5 contracts
Samples: Underwriting Agreement (Cascadian Therapeutics, Inc.), Underwriting Agreement (Oncothyreon Inc.), Underwriting Agreement (Oncothyreon Inc.)
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock Shares hereunder on the Closing Date or any Option Closing Date and the aggregate number of shares Shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares Shares to be purchased by all Underwriters on such Closing Date or Option Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares Shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date or Option Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares Shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares Shares to be purchased by all Underwriters on such Closing Date or Option Closing Date and arrangements satisfactory to the Representatives remaining Underwriters and the Company for the purchase of such shares Shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock Shares of a defaulting Underwriter or Underwriters on such Closing Date or Option Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date or Option Closing Date for a period of not more than five (5) full business days in order that to permit the Company may to effect whatever changes may thereby be made necessary in the Registration Statement or Statement, the Final Prospectus, or in any other documents or arrangements, which may thereby be made necessary, and the Company agrees to promptly to file any amendments to the Registration Statement or supplements to the Final Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares Shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the any other Underwriters Underwriter for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter Underwriters or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2Sections 2 and 3, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections Section 5 and 9 and the provisions of Section 5(h) and Section 7 and Sections 11 9 through 2117, inclusive, shall not terminate and shall remain in full force and effect.
Appears in 4 contracts
Samples: Underwriting Agreement (Document Security Systems Inc), Underwriting Agreement (Document Security Systems Inc), Underwriting Agreement (Document Security Systems Inc)
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock hereunder on any the Closing Date and the aggregate number of shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares to be purchased by all Underwriters on such the Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such the Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such the Closing Date and arrangements satisfactory to the Representatives and the Company for the purchase of such shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock of a defaulting Underwriter or Underwriters on such the Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such the Closing Date for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect.
Appears in 4 contracts
Samples: Underwriting Agreement (Cabaletta Bio, Inc.), Underwriting Agreement (Ovid Therapeutics Inc.), Convertible Preferred Stock (Ovid Therapeutics Inc.)
Substitution of Underwriters. If any Underwriter or Underwriters shall default fail to take up and pay for the number of Firm Shares agreed by such Underwriter or Underwriters to be purchased hereunder upon tender of such Firm Shares in its or their obligations to purchase shares of Stock hereunder on any Closing Date accordance with the terms hereof, and if the aggregate number of shares which Firm Shares that such defaulting Underwriter or Underwriters so agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing DateFirm Shares, the other remaining Underwriters shall be obligated severallyobligated, severally in proportion to their respective commitments hereunder, to purchase take up and pay for the shares which Firm Shares of such defaulting Underwriter or Underwriters. If any Underwriter or Underwriters so defaults and the aggregate number of Firm Shares that such defaulting Underwriter or Underwriters agreed but failed to purchase on take up and pay for exceeds ten percent of the Firm Shares, the remaining Underwriters shall have the right, but shall not be obligated, to take up and pay for (in such Closing Date. If any proportions as may be agreed upon among them) the Firm Shares that the defaulting Underwriter or Underwriters shall so default agreed but failed to purchase. If such remaining Underwriters do not, at the Closing Date, take up and pay for the aggregate number of shares with respect Firm Shares that the defaulting Underwriter or Underwriters so agreed but failed to which such default or defaults occur is more than ten percent (10%) of purchase, the total number of shares to be purchased by all Underwriters on such Closing Date and arrangements shall be postponed for twenty-four hours to allow the several Underwriters the privilege of substituting within twenty-four hours (including non-business hours) another underwriter or underwriters (which may include any nondefaulting Underwriter) satisfactory to the Representatives and Company. If no such underwriter or underwriters shall have been substituted as aforesaid by such postponed Closing Date, the Closing Date may, at the option of the Company, be postponed for a further twenty-four hours, if necessary, to allow the Company for the privilege of finding another underwriter or underwriters, satisfactory to you, to purchase of such shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminatethe Firm Shares that the defaulting Underwriter or Underwriters so agreed but failed to purchase. If it shall be arranged for the remaining Underwriters or substituted Underwriters are required hereby underwriter or agree underwriters to take up all or part the Firm Shares of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date the time of delivery for a period of not more than five (5) seven full business days days, in order that the Company may to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or Statement, supplements to the Prospectus which or other such documents that may thereby be made necessary, and (ii) the respective numbers number of shares Firm Shares to be purchased by the remaining Underwriters and substituted underwriter or substituted Underwriters underwriters shall be taken as the basis of their underwriting obligation obligation. If the remaining Underwriters shall not take up and pay for all purposes of this Agreement. Nothing herein contained shall relieve any such Firm Shares so agreed to be purchased by the defaulting Underwriter of its liability to or Underwriters or substitute another underwriter or underwriters as aforesaid and the Company shall not find or shall not elect to seek another underwriter or underwriters for such Firm Shares as aforesaid, then this Agreement shall terminate. In the other Underwriters for damages occasioned by its default hereunder. Any event of any termination of this Agreement pursuant to the preceding paragraph of this Section 10 10, neither the Company nor either Selling Stockholder shall be without liability on liable to any Underwriter (except as provided in Sections 5 and 8 hereof) nor shall any Underwriter (other than an Underwriter who shall have failed, otherwise than for some reason permitted under this Agreement, to purchase the part number of any non-defaulting Firm Shares agreed by such Underwriter or to be purchased hereunder, which Underwriter shall remain liable to the Company, the Selling Stockholders and the other Underwriters for damages, if any, resulting from such default) be liable to the Company or either Selling Stockholder (except that to the representations, warranties, covenants, indemnities, agreements and other statements set forth extent provided in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect8 hereof).
Appears in 4 contracts
Samples: Underwriting Agreement (Value America Inc /Va), Underwriting Agreement (Value America Inc /Va), Value America Inc /Va
Substitution of Underwriters. If any Underwriter or Underwriters shall default fail to take up and pay for the number of Firm Shares agreed by such Underwriter or Underwriters to be purchased hereunder upon tender of such Firm Shares in its accordance with the terms hereof, and if the aggregate number of Firm Shares which such defaulting Underwriter or their obligations Underwriters so agreed but failed to purchase shares does not exceed 10% of Stock hereunder on the Firm Shares, the remaining Underwriters shall be obligated, severally in proportion to their respective commitments hereunder, to take up and pay for the Firm Shares of such defaulting Underwriter or Underwriters. If any Closing Date Underwriter or Underwriters so defaults and the aggregate number of shares Firm Shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (take up and pay for exceeds 10%) % of the total number Firm Shares, the remaining Underwriters shall have the right, but shall not be obligated, to take up and pay for (in such proportions as may be agreed upon among them) the Firm Shares which the defaulting Underwriter or Underwriters so agreed but failed to purchase. If such remaining Underwriters do not, at the Closing Date, take up and pay for the Firm Shares which the defaulting Underwriter or Underwriters so agreed but failed to purchase, the Closing Date shall be postponed for twenty-four (24) hours to allow the several Underwriters the privilege of shares substituting within twenty-four (24) hours (including non-business hours) another underwriter or underwriters (which may include any nondefaulting Underwriter) satisfactory to be purchased the Company. If no such underwriter or underwriters shall have been substituted as aforesaid by all Underwriters on such postponed Closing Date, the other Underwriters shall Closing Date may, at the option of the Company, be obligated severallypostponed for a further twenty-four (24) hours, in proportion if necessary, to their respective commitments hereunderallow the Company the privilege of finding another underwriter or underwriters, satisfactory to you, to purchase the shares Firm Shares which such the defaulting Underwriter or Underwriters so agreed but failed to purchase on such Closing Datepurchase. If any Underwriter or Underwriters it shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the Representatives and the Company arranged for the purchase of such shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby underwriter or agree underwriters to take up all or part the Firm Shares of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date the time of delivery for a period of not more than five seven (57) full business days days, in order that the Company may to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or Statement, supplements to the Prospectus or other such documents which may thereby be made necessary, and (ii) the respective numbers number of shares Firm Shares to be purchased by the remaining Underwriters and substituted underwriter or substituted Underwriters underwriters shall be taken as the basis of their underwriting obligation obligation. If the remaining Underwriters shall not take up and pay for all purposes of this Agreement. Nothing herein contained shall relieve any such Firm Shares so agreed to be purchased by the defaulting Underwriter of its liability to or Underwriters or substitute another underwriter or underwriters as aforesaid and the Company shall not find or shall not elect to seek another underwriter or underwriters for such Firm Shares as aforesaid, then this Agreement shall terminate. In the other Underwriters for damages occasioned by its default hereunder. Any event of any termination of this Agreement pursuant to the preceding paragraph of this Section 10 shall be without liability on the part of any non-defaulting Underwriter or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 210, the obligations with respect Company shall not be liable to expenses to be paid or reimbursed pursuant to any Underwriter (except as provided in Sections 5 and 9 8 hereof) nor shall any Underwriter (other than an Underwriter who shall have failed, otherwise than for some reason permitted under this Agreement, to purchase the number of Firm Shares agreed by such Underwriter to be purchased hereunder, which Underwriter shall remain liable to the Company and the provisions of Section 7 other Underwriters for damages, if any, resulting from such default) be liable to the Company (except to the extent provided in Sections 5 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect8 hereof).
Appears in 4 contracts
Samples: Underwriting Agreement (Information Advantage Software Inc), Flashnet Communications Inc, Rentx Industries Inc
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations obligation to purchase shares of Stock the Bonds which it has agreed to purchase hereunder on any Closing Date and the aggregate number principal amount of shares such Bonds which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) % of the total number principal amount of shares Bonds, the non-defaulting Underwriters may make arrangements satisfactory to be purchased the Company for the purchase of the aggregate principal amount of such Bonds by all Underwriters on other persons, including any of the non-defaulting Underwriters, but if no such arrangements are made by the Closing Date, the other non-defaulting Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares which Bonds that such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Datepurchase. If any Underwriter or Underwriters shall so default and the aggregate number principal amount of shares Bonds with respect to which such default or defaults occur is more than ten percent (exceeds 10%) % of the total number principal amount of shares to be purchased by all Underwriters on such Closing Date Bonds and arrangements satisfactory to the Representatives non-defaulting Underwriters and the Company for the purchase of such shares Bonds by other persons are not made within forty-eight (48) 36 hours after such default, this Agreement shall will terminate. If the remaining non-defaulting Underwriter or Underwriters or substituted Underwriters underwriter or underwriters are required hereby or agree to take up all or part of the shares Bonds of Stock of a the defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 108, (i) the Company shall have the right to postpone such the Closing Date for a period of not more than five (5) full business days days, in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement Statement, Pricing Disclosure Package or the Prospectus, Prospectus or in any other documents or arrangements, and the Company agrees to promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers aggregate principal amount of shares to be purchased by Bonds which the remaining non-defaulting Underwriters or substituted Underwriters purchaser or purchasers shall thereafter be obligated to purchase shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other non-defaulting Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 8 shall be without liability on the part of any the non-defaulting Underwriter Underwriters or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth than as provided in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect10.
Appears in 4 contracts
Samples: Underwriting Agreement (Centerpoint Energy Houston Electric LLC), Underwriting Agreement (Centerpoint Energy Houston Electric LLC), Centerpoint Energy Houston Electric LLC
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock Shares hereunder on the Closing Date or any Option Closing Date and the aggregate number of shares Shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares Shares to be purchased by all Underwriters on such Closing Date or Option Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares Shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date or Option Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares Shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares Shares to be purchased by all Underwriters on such Closing Date or Option Closing Date and arrangements satisfactory to the Representatives remaining Underwriters and the Company for the purchase of such shares Shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock Shares of a defaulting Underwriter or Underwriters on such Closing Date or Option Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date or Option Closing Date for a period of not more than five (5) full business days in order that to permit the Company may to effect whatever changes may thereby be made necessary in the Registration Statement or Statement, the Final Prospectus, or in any other documents or arrangements, which may thereby be made necessary, and the Company agrees to promptly to file any amendments to the Registration Statement or supplements to the Final Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares Shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the any other Underwriters Underwriter for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter Underwriters or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 22 and 3, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections Section 5 and 9 and the provisions of Section 5(a)(viii) and Section 7 and Sections 11 9 through 2117, inclusive, shall not terminate and shall remain in full force and effect. As used in this Agreement, the term “Underwriter” shall be deemed to include any person substituted for a defaulting Underwriter under this Section 10. Any action taken under this Section 10 shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.
Appears in 4 contracts
Samples: Underwriting Agreement (Vivos Therapeutics, Inc.), Underwriting Agreement (Vivos Therapeutics, Inc.), Underwriting Agreement (Vivos Therapeutics, Inc.)
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock hereunder on any Closing Date and the aggregate number of shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Dateunderwritten, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Datepurchase. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date underwritten and arrangements satisfactory to the Representatives and the Company for the purchase of such shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 1012, (i) the Company shall have the right to postpone such the Closing Date for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 12 shall be without liability on the part of any non-defaulting Underwriter or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to for expenses to be paid or reimbursed pursuant to Sections Section 5 and 9 and except for the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect6.
Appears in 4 contracts
Samples: Underwriting Agreement (Kos Pharmaceuticals Inc), Underwriting Agreement (Kos Pharmaceuticals Inc), Underwriting Agreement (Kos Pharmaceuticals Inc)
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations obligation to purchase shares of Stock the Bonds which it has agreed to purchase hereunder on any Closing Date and the aggregate number principal amount of shares such Bonds which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) % of the total number principal amount of shares Bonds, the non-defaulting Underwriters may make arrangements satisfactory to be purchased the Company for the purchase of the aggregate principal amount of such Bonds by all Underwriters on other persons, including any of the non-defaulting Underwriters, but if no such arrangements are made by the Closing Date, the other non-defaulting Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares which Bonds that such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Datepurchase. If any Underwriter or Underwriters shall so default and the aggregate number principal amount of shares Bonds with respect to which such default or defaults occur is more than ten percent (exceeds 10%) % of the total number principal amount of shares to be purchased by all Underwriters on such Closing Date Bonds and arrangements satisfactory to the Representatives non-defaulting Underwriters and the Company for the purchase of such shares Bonds by other persons are not made within forty-eight (48) 36 hours after such default, this Agreement shall agreement will terminate. If the remaining non-defaulting Underwriter or Underwriters or substituted Underwriters underwriter or underwriters are required hereby or agree to take up all or part of the shares Bonds of Stock of a the defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 108, (i) the Company shall have the right to postpone such the Closing Date for a period of not more than five (5) full business days days, in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement Statement, Pricing Disclosure Package or the Prospectus, Prospectus or in any other documents or arrangements, and the Company agrees to promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers aggregate principal amount of shares to be purchased by Bonds which the remaining non-defaulting Underwriters or substituted Underwriters purchaser or purchasers shall thereafter be obligated to purchase shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other non-defaulting Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 8 shall be without liability on the part of any the non-defaulting Underwriter Underwriters or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth than as provided in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect10.
Appears in 4 contracts
Samples: Underwriting Agreement (Centerpoint Energy Houston Electric LLC), Underwriting Agreement (Centerpoint Energy Houston Electric LLC), Centerpoint Energy Houston Electric LLC
Substitution of Underwriters. If any Underwriter or Underwriters shall default fail to take up and pay for the number of Firm Shares agreed by such Underwriter or Underwriters to be purchased hereunder upon tender of such Firm Shares in its accordance with the terms hereof, and if the aggregate number of Firm Shares which such defaulting Underwriter or their obligations Underwriters so agreed but failed to purchase shares does not exceed 10% of Stock hereunder on the Firm Shares, the remaining Underwriters shall be obligated, severally in proportion to their respective commitments hereunder, to take up and pay for the Firm Shares of such defaulting Underwriter or Underwriters. If any Closing Date Underwriter or Underwriters so defaults and the aggregate number of shares Firm Shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (take up and pay for exceeds 10%) % of the total number Firm Shares, the remaining Underwriters shall have the right, but shall not be obligated, to take up and pay for (in such proportions as may be agreed upon among them) the Firm Shares which the defaulting Underwriter or Underwriters so agreed but failed to purchase. If such remaining Underwriters do not, at the Closing Date, take up and pay for the Firm Shares which the defaulting Underwriter or Underwriters so agreed but failed to purchase, the Closing Date shall be postponed for twenty-four (24) hours to allow the several Underwriters the privilege of shares substituting within twenty-four (24) hours (including non-business hours) another underwriter or underwriters (which may include any nondefaulting Underwriter) satisfactory to be purchased the Company. If no such underwriter or underwriters shall have been substituted as aforesaid by all Underwriters on such postponed Closing Date, the other Underwriters shall Closing Date may, at the option of the Company, be obligated severallypostponed for a further twenty-four (24) hours, in proportion if necessary, to their respective commitments hereunderallow the Company the privilege of finding another underwriter or underwriters, satisfactory to you, to purchase the shares Firm Shares which such the defaulting Underwriter or Underwriters so agreed but failed to purchase on such Closing Datepurchase. If any Underwriter or Underwriters it shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the Representatives and the Company arranged for the purchase of such shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby underwriter or agree underwriters to take up all or part the Firm Shares of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date the time of delivery for a period of not more than five seven (57) full business days days, in order that the Company may to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or Statement, supplements to the Prospectus or other such documents which may thereby be made necessary, and (ii) the respective numbers number of shares Firm Shares to be purchased by the remaining Underwriters and substituted underwriter or substituted Underwriters underwriters shall be taken as the basis of their underwriting obligation obligation. If the remaining Underwriters shall not take up and pay for all purposes of this Agreement. Nothing herein contained shall relieve any such Firm Shares so agreed to be purchased by the defaulting Underwriter of its liability to or Underwriters or substitute another underwriter or underwriters as aforesaid and the Company shall not find or shall not elect to seek another underwriter or underwriters for such Firm Shares as aforesaid, then this Agreement shall terminate. In the other Underwriters for damages occasioned by its default hereunder. Any event of any termination of this Agreement pursuant to the preceding paragraph of this Section 10 10, neither the Company shall be without liability on liable to any Underwriter (except as provided in Sections 5 and 8 hereof) nor shall any Underwriter (other than an Underwriter who shall have failed, otherwise than for some reason permitted under this Agreement, to purchase the part number of any non-defaulting Firm Shares agreed by such Underwriter or to be purchased hereunder, which Underwriter shall remain liable to the Company, and the other Underwriters for damages, if any, resulting from such default) be liable to the Company (except that to the representations, warranties, covenants, indemnities, agreements and other statements set forth extent provided in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect8 hereof).
Appears in 4 contracts
Samples: Underwriting Agreement (Sportsline Usa Inc), U S Physicians Inc, Balanced Care Corp
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock hereunder on any Closing Date and the aggregate number of shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Dateunderwritten, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Datepurchase. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date underwritten and arrangements satisfactory to the Representatives and the Company for the purchase of such shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 1012, (i) the Company shall have the right to postpone such the Closing Date Dates for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 12 shall be without liability on the part of any non-defaulting Underwriter or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to for expenses to be paid or reimbursed pursuant to Sections Section 5 and 9 and except for the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect6.
Appears in 4 contracts
Samples: Allos Therapeutics, Allos Therapeutics, Healthgate Data Corp
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock Shares and/or Warrants hereunder on the Closing Date or any Option Closing Date and the aggregate number of shares Shares and/or Warrants which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares Shares and/or Warrants to be purchased by all Underwriters on such Closing Date or Option Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares Shares and/or Warrants which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date or Option Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares Shares and/or Warrants with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares Shares and/or Warrants to be purchased by all Underwriters on such Closing Date or Option Closing Date and arrangements satisfactory to the Representatives remaining Underwriters and the Company for the purchase of such shares by other persons are not made within forty-forty eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock Shares Warrants of a defaulting Underwriter or Underwriters on such Closing Date or Option Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date or Option Closing Date for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement Statements or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement Statements or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the any other Underwriters Underwriter for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-non defaulting Underwriter Underwriters or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 22 and 3, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections Section 5 and 9 and the provisions of Section 7 and Sections 11 through 2118, inclusive, shall not terminate and shall remain in full force and effect.
Appears in 4 contracts
Samples: Underwriting Agreement (Plug Power Inc), Underwriting Agreement (Plug Power Inc), Underwriting Agreement (Plug Power Inc)
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock the Securities hereunder on any Closing Date Date, and the aggregate number of shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date Date, and arrangements satisfactory to the Representatives and the Company for the purchase of such shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock Securities of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date Dates for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 and the provisions of Section 7 7, Section 11 and Sections 11 13 through 21, inclusive, shall not terminate and shall remain in full force and effect.
Appears in 4 contracts
Samples: Underwriting Agreement (Argenx Se), Underwriting Agreement (Argenx Se), Underwriting Agreement (Argenx Se)
Substitution of Underwriters. If any Underwriter or Underwriters shall default defaults in its or their obligations obligation to purchase shares the principal amount of Stock hereunder on the Notes which it has agreed to purchase under this Agreement, the non-defaulting Underwriters will be obligated to purchase (in the respective proportions which the principal amount of the Notes set forth opposite the name of each non-defaulting Underwriter in Schedule I hereto bears to the total principal amount of the Notes less the principal amount of the Notes the defaulting Underwriter agreed to purchase set forth in Schedule I hereto) the principal amount of the Notes which the defaulting Underwriter agreed but failed to purchase; except that the non-defaulting Underwriters will not be obligated to purchase any Closing Date and of the aggregate number Notes if the total principal amount of shares the Notes which such the defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) 9.09% of the total number principal amount of shares the Notes, and any non-defaulting Underwriters will not be obligated to be purchased by all Underwriters on such Closing Datepurchase more than 110% of the principal amount of the Notes set forth opposite its name in Schedule I hereto. If the foregoing maximums are exceeded, the non-defaulting Underwriters, and any other Underwriters shall underwriters satisfactory to the Representatives who so agree, will have the right, but will not be obligated severally, in proportion to their respective commitments hereunderobligated, to purchase (in such proportions as may be agreed upon among them) all of the shares which such Notes. If the non-defaulting Underwriters or the other underwriters satisfactory to the Underwriters do not elect to purchase the Notes that the defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the Representatives and the Company for the purchase of such shares by other persons are not made within forty-eight (48) 36 hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be will terminate without liability on the part of any non-defaulting Underwriter or the CompanyCompany or any Guarantor, except for the indemnity and contribution agreements of the Company and each of the Guarantors and the Underwriters contained in Section 7 of this Agreement. As used in this Agreement, the term “Underwriter” includes any person substituted for an Underwriter pursuant to this Section 8. If the non-defaulting Underwriters or the other underwriters satisfactory to the Representatives are obligated or agree to purchase the Notes of a defaulting Underwriter, the Representatives may postpone the Closing Date for up to seven full Business Days in order that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 Company and the provisions Guarantors may effect any changes that may be necessary in the Registration Statement or the Prospectus or in any other document or agreement, and each of Section 7 the Company and Sections 11 through 21the Guarantors agrees to file promptly any amendments or any supplements to the Registration Statement or the Prospectus which, inclusivein the opinion of the Representatives, shall not terminate and shall remain in full force and effectmay thereby be made necessary. Nothing contained herein will relieve a defaulting Underwriter of any liability it may have for damages caused by its default.
Appears in 4 contracts
Samples: Underwriting Agreement (O Reilly Automotive Inc), Underwriting Agreement (OC Holding Company, LLC), Underwriting Agreement (OC Holding Company, LLC)
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock Securities hereunder on any the Closing Date and the aggregate number of shares Securities which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares Securities to be purchased by all Underwriters on such Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares Securities which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares Securities with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares Securities to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the Representatives remaining Underwriters and the Company for the purchase of such shares Securities by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock Securities of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date for a period of not more than five (5) full business days in order that to permit the Company may to effect whatever changes may thereby be made necessary in the Registration Statement or Statement, the Final Prospectus, or in any other documents or arrangements, which may thereby be made necessary, and the Company agrees to promptly to file any amendments to the Registration Statement or supplements to the Final Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares Securities to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the any other Underwriters Underwriter for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter Underwriters or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 22 and 3, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections Section 5 and 9 and the provisions of Section 7 5(a)(x) and Section 9 and Sections 11 through 2118, inclusive, shall not terminate and shall remain in full force and effect. As used in this Agreement, the term “Underwriter” shall be deemed to include any person substituted for a defaulting Underwriter under this Section 10. Any action taken under this Section 10 shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.
Appears in 4 contracts
Samples: Underwriting Agreement (Inpixon), Underwriting Agreement (Inpixon), Underwriting Agreement (Inpixon)
Substitution of Underwriters. If any Underwriter or defaults in its obligation to purchase the number of Securities which it has agreed to purchase under this Agreement, the non-defaulting Underwriters shall default in its or their obligations be obligated to purchase shares of Stock hereunder on any Closing Date and (in the aggregate respective proportions which the number of shares Securities set forth opposite the name of each non-defaulting Underwriter in Schedule I hereto bears to the total number of Securities set forth opposite the names of all the non- defaulting Underwriters in Schedule I hereto) the Securities which such the defaulting Underwriter agreed but failed to purchase (the “Default Securities”); except that the non-defaulting Underwriters shall not be obligated to purchase any of the Securities if the total number of Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (exceeds 10%) % of the total number of shares to be purchased by all Underwriters on such Closing DateFirm Securities, the other Underwriters and any non-defaulting Underwriter shall not be obligated severally, in proportion to their respective commitments hereunder, to purchase more than 110% of the shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased Securities set forth opposite its name in Schedule I attached hereto purchasable by all Underwriters on such Closing Date and arrangements satisfactory it pursuant to the Representatives and the Company for the purchase terms of such shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminateSection 3 hereof. If the remaining Underwriters or substituted Underwriters foregoing maximums are required hereby or agree to take up all or part of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10exceeded, (i) the Company non-defaulting Underwriters, and any other underwriters satisfactory to the Representative who so agree, shall have the right right, but shall not be obligated, to postpone purchase (in such Closing Date for a period of not more than five (5proportions as may be agreed upon among them) full business days in order that all the Company may effect whatever changes may thereby be made necessary in Default Securities on the Registration Statement or terms contained herein. If the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining non-defaulting Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of underwriters satisfactory to the Representative do not elect to purchase the Default Securities, this Agreement pursuant to this Section 10 shall be terminate without liability on the part of any non-defaulting Underwriter or the Company, Company except that for the representations, warranties, covenants, indemnities, agreements payment of expenses to be borne by the Company and other statements set forth the Underwriters as provided in Section 25 hereof and the indemnity and contribution agreements of the Company and the Underwriters contained in Section 7 hereof. Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have for damages caused by its default. If the other underwriters satisfactory to the Representative are obligated or agree to purchase the Securities of a defaulting Underwriter, either the Representative or the Company may postpone the First Closing Date for up to five full Business Days in order to effect any changes that may be necessary in the Registration Statement, the obligations Time of Sale Disclosure Package or the Prospectus or in any other document or agreement, and to file promptly any amendments or any supplements to the Registration Statement or the Time of Sale Disclosure Package or the Prospectus which in the Representative’s opinion may thereby be made necessary. The term “Underwriter” as used in this Agreement shall include any party substituted under this Section 8 with like effect as if it had originally been a party to this Agreement with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effectSecurities.
Appears in 4 contracts
Samples: Underwriting Agreement (New York Mortgage Trust Inc), Underwriting Agreement (New York Mortgage Trust Inc), Underwriting Agreement (New York Mortgage Trust Inc)
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock hereunder on any Closing Date and the aggregate number of shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the Representatives Representative and the Company for the purchase of such shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date Dates for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement Statements or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement Statements or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect.
Appears in 4 contracts
Samples: Underwriting Agreement (Sunesis Pharmaceuticals Inc), Underwriting Agreement (Sunesis Pharmaceuticals Inc), Underwriting Agreement (Attunity LTD)
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock hereunder on any Closing Date and the aggregate number of shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the Representatives and the Company for the purchase of such shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company and the Selling Stockholders shall have the right to postpone such Closing Date Dates for a period of not more than five (5) full business days in order that the Company and the Selling Stockholders may effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company Company, the Selling Stockholders or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter Underwriter, the Selling Stockholders or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect.
Appears in 3 contracts
Samples: Underwriting Agreement (Greenlane Holdings, Inc.), Underwriting Agreement (Greenlane Holdings, Inc.), Underwriting Agreement
Substitution of Underwriters. If any Underwriter or Underwriters shall default fail to take up and pay for the number of Firm Shares agreed by such Underwriter or Underwriters to be purchased hereunder upon tender of such Firm Shares in its accordance with the terms hereof, and if the aggregate number of Firm Shares which such defaulting Underwriter or their obligations Underwriters so agreed but failed to purchase shares does not exceed 10% of Stock hereunder on the Firm Shares, the remaining Underwriters shall be obligated, severally in proportion to their respective commitments hereunder, to take up and pay for the Firm Shares of such defaulting Underwriter or Underwriters. If any Closing Date Underwriter or Underwriters so defaults and the aggregate number of shares Firm Shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (take up and pay for exceeds 10%) % of the total number Firm Shares, the remaining Underwriters shall have the right, but shall not be obligated, to take up and pay for (in such proportions as may be agreed upon among them) the Firm Shares which the defaulting Underwriter or Underwriters so agreed but failed to purchase. If such remaining Underwriters do not, at the Closing Date, take up and pay for the Firm Shares which the defaulting Underwriter or Underwriters so agreed but failed to purchase, the Closing Date shall be postponed for twenty-four (24) hours to allow the several Underwriters the privilege of shares substituting within twenty-four (24) hours (including non-business hours) another underwriter or underwriters (which may include any nondefaulting Underwriter) satisfactory to be purchased the Company. If no such underwriter or underwriters shall have been substituted as aforesaid by all Underwriters on such postponed Closing Date, the other Underwriters shall Closing Date may, at the option of the Company, be obligated severallypostponed for a further twenty-four (24) hours, in proportion if necessary, to their respective commitments hereunderallow the Company the privilege of finding another underwriter or underwriters, satisfactory to you, to purchase the shares Firm Shares which such the defaulting Underwriter or Underwriters so agreed but failed to purchase on such Closing Datepurchase. If any Underwriter or Underwriters it shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the Representatives and the Company arranged for the purchase of such shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby underwriter or agree underwriters to take up all or part the Firm Shares of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date the time of delivery for a period of not more than five seven (57) full business days days, in order that the Company may to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers number of shares Firm Shares to be purchased by the remaining Underwriters and substituted underwriter or substituted Underwriters underwriters shall be taken as the basis of their underwriting obligation obligation. If the remaining Underwriters shall not take up and pay for all purposes of this Agreement. Nothing herein contained shall relieve any such Firm Shares so agreed to be purchased by the defaulting Underwriter of its liability to or Underwriters or substitute another underwriter or underwriters as aforesaid and the Company shall not find or shall not elect to seek another underwriter or underwriters for such Firm Shares as aforesaid, then this Agreement shall terminate. In the other Underwriters for damages occasioned by its default hereunder. Any event of any termination of this Agreement pursuant to the preceding paragraph of this Section 10 10, neither the Company nor any Selling Stockholder shall be without liability on liable to any Underwriter (except as provided in Sections 5 and 8 hereof) nor shall any Underwriter (other than an Underwriter who shall have failed, otherwise than for some reason permitted under this Agreement, to purchase the part number of any non-defaulting Firm Shares agreed by such Underwriter or to be purchased hereunder, which Underwriter shall remain liable to the Company, the Selling Stockholders and the other Underwriters for damages, if any, resulting from such default) be liable to the Company or any Selling Stockholder (except that to the representations, warranties, covenants, indemnities, agreements and other statements set forth extent provided in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect8 hereof).
Appears in 3 contracts
Samples: Underwriting Agreement (Invision Technologies Inc), Jaco Electronics Inc, Netgravity Inc
Substitution of Underwriters. If any Underwriter or defaults in its obligation to purchase the number of Securities which it has agreed to purchase under this Agreement, the non-defaulting Underwriters shall default in its or their obligations be obligated to purchase shares of Stock hereunder on any Closing Date and (in the aggregate respective proportions which the number of shares Securities set forth opposite the name of each non-defaulting Underwriter in Schedule I hereto bears to the total number of Securities set forth opposite the names of all the non-defaulting Underwriters in Schedule I hereto) the Securities which such the defaulting Underwriter agreed but failed to purchase (the "Default Securities"); except that the non-defaulting Underwriters shall not be obligated to purchase any of the Securities if the total number of Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (exceeds 10%) % of the total number of shares to be purchased by all Underwriters on such Closing DateFirm Securities, the other Underwriters and any non-defaulting Underwriter shall not be obligated severally, in proportion to their respective commitments hereunder, to purchase more than 110% of the shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased Securities set forth opposite its name in Schedule I attached hereto purchasable by all Underwriters on such Closing Date and arrangements satisfactory it pursuant to the Representatives and the Company for the purchase terms of such shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminateSection 3 hereof. If the remaining Underwriters or substituted Underwriters foregoing maximums are required hereby or agree to take up all or part of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10exceeded, (i) the Company non-defaulting Underwriters, and any other underwriters satisfactory to the Representatives who so agree, shall have the right right, but shall not be obligated, to postpone purchase (in such Closing Date for a period of not more than five (5proportions as may be agreed upon among them) full business days in order that all the Company may effect whatever changes may thereby be made necessary in Default Securities on the Registration Statement or terms contained herein. If the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining non-defaulting Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of underwriters satisfactory to the Representatives do not elect to purchase the Default Securities, this Agreement pursuant to this Section 10 shall be terminate without liability on the part of any non-defaulting Underwriter or the Company, Company except that for the representations, warranties, covenants, indemnities, agreements payment of expenses to be borne by the Company and other statements set forth the Underwriters as provided in Section 25 hereof and the indemnity and contribution agreements of the Company and the Underwriters contained in Section 7 hereof. Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have for damages caused by its default. If the other underwriters satisfactory to the Representatives are obligated or agree to purchase the Securities of a defaulting Underwriter, either the Representatives or the Company may postpone the First Closing Date for up to five full Business Days in order to effect any changes that may be necessary in the Registration Statement, the obligations Time of Sale Disclosure Package or the Prospectus or in any other document or agreement, and to file promptly any amendments or any supplements to the Registration Statement or the Time of Sale Disclosure Package or the Prospectus which in the Representatives' opinion may thereby be made necessary. The term "Underwriter" as used in this Agreement shall include any party substituted under this Section 8 with like effect as if it had originally been a party to this Agreement with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effectSecurities.
Appears in 3 contracts
Samples: Underwriting Agreement (New York Mortgage Trust Inc), New York Mortgage Trust Inc, New York Mortgage Trust Inc
Substitution of Underwriters. If any Underwriter or defaults in its obligation to purchase the number of Securities which it has agreed to purchase under this Agreement, the non-defaulting Underwriters shall default in its or their obligations be obligated to purchase shares of Stock hereunder on any Closing Date and (in the aggregate respective proportions which the number of shares Securities set forth opposite the name of each non-defaulting Underwriter in Schedule I hereto bears to the total number of Securities set forth opposite the names of all the non-defaulting Underwriters in Schedule I hereto) the Securities which such the defaulting Underwriter agreed but failed to purchase; except that the non-defaulting Underwriters shall not be obligated to purchase any of the Securities if the total number of Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (exceeds 10%) % of the total number of shares to be purchased by all Underwriters on such Closing DateFirm Securities, the other Underwriters and any non-defaulting Underwriter shall not be obligated severallyto purchase more than 110% of the number of Securities set forth opposite its name in Schedule I hereto purchasable by it pursuant to the terms of Section 4 hereof. If the foregoing maximums are exceeded, in proportion (i) the non-defaulting Underwriters, and any other underwriters satisfactory to their respective commitments hereunderthe Representative who so agree, shall have the right, but shall not be obligated, to purchase (in such proportions as may be agreed upon among them) all the shares Securities. If the non-defaulting Underwriters or the other underwriters satisfactory to the Representative do not elect to purchase the Securities which such the defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the Representatives and the Company for the purchase of such shares by other persons are not made within forty-eight (48) hours after such defaultpurchase, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be terminate without liability on the part of any non-defaulting Underwriter or the Company, Company except that for the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to payment of expenses to be paid or reimbursed pursuant to Sections 5 and 9 borne by the Company and the provisions Underwriters as provided in Section 5 hereof and the indemnity and contribution agreements of the Company and the Underwriters contained in Section 7 hereof. Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have for damages caused by its default. If the other underwriters satisfactory to the Representative are obligated or agree to purchase the Securities of a defaulting Underwriter, either the Representative or the Company may postpone the First Closing Date for up to five full Business Days in order to effect any changes that may be necessary in the Registration Statement, the General Disclosure Package or the Prospectus or in any other document or agreement, and Sections 11 through 21, inclusive, shall not terminate and shall remain to file promptly any amendments or any supplements to the Registration Statement or the General Disclosure Package or the Prospectus which in full force and effectthe Representative' opinion may thereby be made necessary.
Appears in 3 contracts
Samples: Armour Residential (Armour Residential REIT, Inc.), Armour Residential (Armour Residential REIT, Inc.), Underwriting Agreement (Armour Residential REIT, Inc.)
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock hereunder on any Closing Date and the aggregate number of shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the Representatives Representative and the Company for the purchase of such shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement Statements or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement Statements or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed to non-defaulting Underwriters pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect.
Appears in 3 contracts
Samples: Underwriting Agreement (Kempharm, Inc), Underwriting Agreement (CymaBay Therapeutics, Inc.), Underwriting Agreement (CymaBay Therapeutics, Inc.)
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock Public Units hereunder on any Closing Date and the aggregate number of shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares Units to be purchased by all Underwriters on such Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares Units which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares Units with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares Units to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the Representatives Representative and the Company for the purchase of such shares Units by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock Public Units of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares Units to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect.
Appears in 3 contracts
Samples: Underwriting Agreement (VectoIQ Acquisition Corp.), Underwriting Agreement (VectoIQ Acquisition Corp.), Underwriting Agreement (VectoIQ Acquisition Corp.)
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock Public Units hereunder on any Closing Date and the aggregate number of shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the Representatives Representative and the Company for the purchase of such shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock Public Units of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect.
Appears in 3 contracts
Samples: Underwriting Agreement (GigCapital, Inc.), Underwriting Agreement (GigCapital, Inc.), Underwriting Agreement (GigCapital, Inc.)
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock hereunder on any the Closing Date and the aggregate number of shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares to be purchased by all Underwriters on such the Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunderset forth on Schedule I hereto, to purchase the shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such the Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such the Closing Date and arrangements satisfactory to the Representatives and the Company for the purchase of such shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock of a defaulting Underwriter or Underwriters on such the Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such the Closing Date for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement Statements or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement Statements or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed to non-defaulting Underwrtiers pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect.
Appears in 3 contracts
Samples: Underwriting Agreement (Cascadian Therapeutics, Inc.), Underwriting Agreement (Cascadian Therapeutics, Inc.), Underwriting Agreement (Identive Group, Inc.)
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock and/or Warrants hereunder on any Closing Date and the aggregate number of shares and/or Warrants which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares and/or Warrants to be purchased by all Underwriters on such Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares and/or Warrants with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares and/or Warrants to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the Representatives Representative and the Company for the purchase of such shares by other persons are not made within forty-forty eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock or Warrants of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 1011, (i) the Company shall have the right to postpone such Closing Date Dates for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement Statements or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement Statements or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 11 shall be without liability on the part of any non-defaulting Underwriter or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 4(v) and 9 10 and the provisions of Section 7 8 and Sections 11 12 through 21, inclusive, shall not terminate and shall remain in full force and effect.
Appears in 3 contracts
Samples: Underwriting Agreement (ImmunoCellular Therapeutics, Ltd.), Underwriting Agreement (ImmunoCellular Therapeutics, Ltd.), Underwriting Agreement (ImmunoCellular Therapeutics, Ltd.)
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock Underwritten Units hereunder on the Closing Date or any Option Closing Date and the aggregate number of shares Underwritten Units which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares Underwritten Units to be purchased by all Underwriters on such Closing Date or Option Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares Underwritten Units which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date or Option Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares Underwritten Units with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares Underwritten Units to be purchased by all Underwriters on such Closing Date or Option Closing Date and arrangements satisfactory to the Representatives remaining Underwriters and the Company for the purchase of such shares Underwritten Units by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock Underwritten Units of a defaulting Underwriter or Underwriters on such Closing Date or Option Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date or Option Closing Date for a period of not more than five (5) full business days in order that to permit the Company may to effect whatever changes may thereby be made necessary in the Registration Statement or Statement, the Final Prospectus, or in any other documents or arrangements, which may thereby be made necessary, and the Company agrees to promptly to file any amendments to the Registration Statement or supplements to the Final Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares Underwritten Units to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the any other Underwriters Underwriter for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter Underwriters or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 22 and 3, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 Section 5(a)(viii) and the provisions of Section 7 and Sections 11 through 2118, inclusive, shall not terminate and shall remain in full force and effect. As used in this Agreement, the term “Underwriter” shall be deemed to include any person substituted for a defaulting Underwriter under this Section 10. Any action taken under this Section 10 shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.
Appears in 3 contracts
Samples: Underwriting Agreement (Frankly Inc), Underwriting Agreement (Frankly Inc), Underwriting Agreement (Frankly Inc)
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock hereunder on any Closing Date and the aggregate number of shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Dateunderwritten, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Datepurchase. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date underwritten and arrangements satisfactory to the Representatives Representative and the Company for the purchase of such shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such the Closing Date Dates for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 and except the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect.
Appears in 3 contracts
Samples: Underwriting Agreement (Kintera Inc), Underwriting Agreement (Terremark Worldwide Inc), Inverness Medical Innovations Inc
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock hereunder on any Closing Date and the aggregate number of shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the Representatives and the Company for the purchase of such shares by other persons are not made within forty-forty eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company and the Selling Shareholders shall have the right to postpone such Closing Date Dates for a period of not more than five (5) full business days in order that the Underwriters, the Company and the Selling Shareholders may effect whatever changes may thereby be made necessary in the Registration Statement Statements or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement Statements or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company Company, the Selling Shareholders or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter Underwriter, the Selling Shareholders or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect.
Appears in 3 contracts
Samples: Underwriting Agreement (Double-Take Software, Inc.), Underwriting Agreement (Double-Take Software, Inc.), Underwriting Agreement (Double-Take Software, Inc.)
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock Securities hereunder on any the Closing Date and the aggregate number of shares Securities which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares Securities to be purchased by all Underwriters on such Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares Securities which such defaulting Underwriter or Underwriters agreed but failed to purchase on such the Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares Securities with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares Securities to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the Representatives remaining Underwriters and the Company for the purchase of such shares Securities by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock Securities of a defaulting Underwriter or Underwriters on such the Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such the Closing Date for a period of not more than five (5) full business days in order that to permit the Company may to effect whatever changes may thereby be made necessary in the Registration Statement or Statement, the Prospectus, or in any other documents or arrangements, which may thereby be made necessary, and the Company agrees to promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares Securities to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the any other Underwriters Underwriter for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter Underwriters or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 22 and 3, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 Section 5(a)(viii) and the provisions of Section 7 and Sections 11 through 2118, inclusive, shall not terminate and shall remain in full force and effect. As used in this Agreement, the term “Underwriter” shall be deemed to include any person substituted for a defaulting Underwriter under this Section 10. Any action taken under this Section 10 shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.
Appears in 3 contracts
Samples: Underwriting Agreement (Guerrilla RF, Inc.), Underwriting Agreement (NFT Gaming Co Inc.), Underwriting Agreement (Venus Concept Inc.)
Substitution of Underwriters. If any Underwriter or defaults in its obligation to purchase the number of Shares which it has agreed to purchase under this Agreement, the non-defaulting Underwriters shall default in its or their obligations be obligated to purchase shares of Stock hereunder on any Closing Date and (in the aggregate respective proportions which the number of shares Shares set forth opposite the name of each non-defaulting Underwriter in Schedule I hereto bears to the total number of Shares set forth opposite the names of all the non-defaulting Underwriters in Schedule I hereto) the Shares which such the defaulting Underwriter agreed but failed to purchase; except that the non-defaulting Underwriters shall not be obligated to purchase any of the Shares if the total number of Shares which the defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (exceeds 10%) % of the total number of shares to be purchased by all Underwriters on such Closing DateFirm Shares, the other Underwriters and any non-defaulting Underwriter shall not be obligated severallyto purchase more than 110% of the number of Shares set forth opposite its name in Schedule I hereto plus the total number of Option Shares, in proportion purchasable by it pursuant to their respective commitments hereunderthe terms of Section 2. If the foregoing maximums are exceeded, (i) the non-defaulting Underwriters, and any other underwriters satisfactory to the Representative who so agree, shall have the right, but shall not be obligated, to purchase (in such proportions as may be agreed upon among them) all the shares Shares. If the non-defaulting Underwriters or the other underwriters satisfactory to the Representative do not elect to purchase the Shares which such the defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the Representatives and the Company for the purchase of such shares by other persons are not made within forty-eight (48) hours after such defaultpurchase, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be terminate without liability on the part of any non-defaulting Underwriter or the Company, Company except that for the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to payment of expenses to be paid or reimbursed pursuant to Sections 5 and 9 borne by the Company and the provisions Underwriters as provided in Section (4)(k) and the indemnity and contribution agreements of the Company and the Underwriters contained in Section 7 hereof. Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have for damages caused by its default. If the other underwriters satisfactory to the Representative are obligated or agree to purchase the Shares of a defaulting Underwriter, either the Representative or the Company may postpone the First Closing Date for up to five full Business Days in order to effect any changes that may be necessary in the Registration Statement, the Pricing Disclosure Package, the Effective Prospectus or the Final Prospectus or in any other document or agreement, and Sections 11 through 21to file promptly any amendments or any supplements to the Registration Statement, inclusivethe Pricing Disclosure Package, shall not terminate and shall remain the Effective Prospectus or the Final Prospectus which in full force and effectthe Representative’s opinion may thereby be made necessary.
Appears in 3 contracts
Samples: Underwriting Agreement (Wilson Holdings, Inc.), Underwriting Agreement (Wilson Holdings, Inc.), Underwriting Agreement (Wilson Holdings, Inc.)
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock Public Units hereunder on any Closing Date and the aggregate number of shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares Units to be purchased by all Underwriters on such Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares Units which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares Units with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares Units to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the Representatives and the Company for the purchase of such shares Units by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock Public Units of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares Units to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect.
Appears in 3 contracts
Samples: Underwriting Agreement (VectoIQ Acquisition Corp. II), Unit Purchase Agreement (VectoIQ Acquisition Corp. II), Unit Purchase Agreement (VectoIQ Acquisition Corp. II)
Substitution of Underwriters. If any Underwriter or defaults in its obligation to purchase the number of Securities which it has agreed to purchase under this Agreement, the non-defaulting Underwriters shall default in its or their obligations be obligated to purchase shares of Stock hereunder on any Closing Date and (in the aggregate respective proportions which the number of shares Securities set forth opposite the name of each non-defaulting Underwriter in Schedule I hereto bears to the total number of Securities set forth opposite the names of all the non-defaulting Underwriters in Schedule I hereto) the Securities which such the defaulting Underwriter agreed but failed to purchase (the “Default Securities”); except that the non-defaulting Underwriters shall not be obligated to purchase any of the Securities if the total number of Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (exceeds 10%) % of the total number of shares Firm Securities, and any non-defaulting Underwriter shall not be obligated to be purchased purchase more than 110% of the number of Securities set forth opposite its name in Schedule I attached hereto purchasable by all Underwriters on such Closing Dateit pursuant to the terms of Section 3 hereof. If the foregoing maximums are exceeded, the non-defaulting Underwriters, and any other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date and arrangements underwriters satisfactory to the Representatives and who so agree, shall have the Company for right, but shall not have the obligation, to purchase of (in such shares by proportions as may be agreed upon among them) all the Default Securities on the terms contained herein. If the non-defaulting Underwriters or the other persons are underwriters satisfactory to the Representatives do not made within forty-eight (48) hours after such defaultelect to purchase the Default Securities, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be terminate without liability on the part of any non-defaulting Underwriter or the Company, Company except that for the representations, warranties, covenants, indemnities, agreements payment of expenses to be borne by the Company and other statements set forth the Underwriters as provided in Section 25(o) hereof and the indemnity and contribution agreements of the Company and the Underwriters contained in Section 7 hereof. Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have for damages caused by its default. If the other underwriters satisfactory to the Representatives are obligated or agree to purchase the Securities of a defaulting Underwriter, either the Representatives or the Company may postpone the First Closing Date for up to five full Business Days in order to effect any changes that may be necessary in the Registration Statement, the obligations Time of Sale Disclosure Package or the Prospectus or in any other document or agreement, and to file promptly any amendments or any supplements to the Registration Statement or the Time of Sale Disclosure Package or the Prospectus which in the Representatives’ opinion may thereby be made necessary. The term “Underwriter” as used in this Agreement shall include any party substituted under this Section 8 with like effect as if it had originally been a party to this Agreement with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effectSecurities.
Appears in 3 contracts
Samples: Underwriting Agreement (Arlington Asset Investment Corp.), Underwriting Agreement (Arlington Asset Investment Corp.), Underwriting Agreement (Arlington Asset Investment Corp.)
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock and Warrants hereunder on any the Closing Date and the aggregate number of shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares to be purchased by all Underwriters on such the Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such the Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such the Closing Date and arrangements satisfactory to the Representatives Representative and the Company for the purchase of such shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock and Warrants of a defaulting Underwriter or Underwriters on such the Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such the Closing Date for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement Statements or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement Statements or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect.
Appears in 3 contracts
Samples: Underwriting Agreement (Sunesis Pharmaceuticals Inc), Underwriting Agreement (NeoStem, Inc.), Underwriting Agreement (Sunesis Pharmaceuticals Inc)
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock hereunder on any Closing Date and the aggregate number of shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the Representatives and the Company for the purchase of such shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date Dates for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 through 2122, inclusive, shall not terminate and shall remain in full force and effect.
Appears in 3 contracts
Samples: Underwriting Agreement (Albireo Pharma, Inc.), Underwriting Agreement (Cytosorbents Corp), Underwriting Agreement (Nkarta, Inc.)
Substitution of Underwriters. If any Underwriter or Underwriters shall default fail to take up and pay for the number of Firm Shares agreed by such Underwriter or Underwriters to be purchased hereunder upon tender of such Firm Shares in its accordance with the terms hereof, and if the aggregate number of Firm Shares which such defaulting Underwriter or their obligations Underwriters so agreed but failed to purchase shares does not exceed 10% of Stock hereunder on the Firm Shares, the remaining Underwriters shall be obligated, severally in proportion to their respective commitments hereunder, to take up and pay for the Firm Shares of such defaulting Underwriter or Underwriters. If any Closing Date Underwriter or Underwriters so defaults and the aggregate number of shares Firm Shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (take up and pay for exceeds 10%) % of the total number Firm Shares, the remaining Underwriters shall have the right, but shall not be obligated, to take up and pay for (in such proportions as may be agreed upon among them) the Firm Shares which the defaulting Underwriter or Underwriters so agreed but failed to purchase. If such remaining Underwriters do not, at the Closing Date, take up and pay for the Firm Shares which the defaulting Underwriter or Underwriters so agreed but failed to purchase, the Closing Date shall be postponed for twenty-four (24) hours to allow the several Underwriters the privilege of shares substituting within twenty-four (24) hours (including non-business hours) another underwriter or underwriters (which may include any nondefaulting Underwriter) satisfactory to be purchased the Company. If no such underwriter or underwriters shall have been substituted as aforesaid by all Underwriters on such postponed Closing Date, the other Underwriters shall be obligated severallyClosing Date may, in proportion to their respective commitments hereunder, to purchase at the shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) option of the total number of shares to Company, be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the Representatives and the Company postponed for the purchase of such shares by other persons are not made within a further forty-eight (48) hours after such defaulthours, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made if necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter or allow the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect.
Appears in 3 contracts
Samples: Underwriting Agreement (Aremissoft Corp /De/), Underwriting Agreement (Aremissoft Corp /De/), Aremissoft Corp /De/
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock Units hereunder on any Closing Date and the aggregate number numbers of shares Units which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Dateunderwritten, the other Underwriters Underwriter shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares Units which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Datepurchase. If any Underwriter or Underwriters shall so default and the aggregate number of shares Units with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date Units underwritten and arrangements satisfactory to the Representatives Underwriters and the Company for the purchase of such shares Units by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters Underwriter or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock Units of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such the Closing Date Dates for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers number of shares Units to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter Underwriters of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter Underwriters or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to for expenses to be paid or reimbursed pursuant to Sections Section 5 and 9 and except for the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect7.
Appears in 3 contracts
Samples: Form of Underwriting Agreement (Antex Biologics Inc), Underwriting Agreement (99 Cent Stuff Inc), Underwriting Agreement (Biodelivery Sciences International Inc)
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock hereunder on any Closing Date and the aggregate number of shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the Representatives Representative and the Company for the purchase of such shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 12 through 21, inclusive, shall not terminate and shall remain in full force and effect.
Appears in 3 contracts
Samples: Underwriting Agreement (Global Defense & National Security Systems, Inc.), Underwriting Agreement (Global Defense & National Security Systems, Inc.), Underwriting Agreement (Omeros Corp)
Substitution of Underwriters. If any Underwriter or defaults in its obligation to purchase the number of Securities which it has agreed to purchase under this Agreement, the non-defaulting Underwriters shall default in its or their obligations be obligated to purchase shares of Stock hereunder on any Closing Date and (in the aggregate respective proportions which the number of shares Securities set forth opposite the name of each non-defaulting Underwriter in Schedule I hereto bears to the total number of Securities set forth opposite the names of all the non- defaulting Underwriters in Schedule I hereto) the Securities which such the defaulting Underwriter agreed but failed to purchase; except that the non-defaulting Underwriters shall not be obligated to purchase any of the Securities if the total number of Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (exceeds 10%) % of the total number of shares Securities to be purchased by all Underwriters on such Closing Datedate, and any non-defaulting Underwriter shall not be obligated to purchase more than 110% of the number of Securities set forth opposite its name in Schedule I hereto purchasable by it pursuant to the terms of Section 2. If the foregoing maximums are exceeded, the non-defaulting Underwriters, and any other Underwriters underwriters satisfactory to the Representative who so agree, shall have the right, but shall not be obligated severally, in proportion to their respective commitments hereunderobligated, to purchase (in such proportions as may be agreed upon among them) all the shares Securities. If the non- defaulting Underwriters or the other underwriters satisfactory to the Representative do not elect to purchase the Securities which such the defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the Representatives and the Company for the purchase of such shares by other persons are not made within forty-eight (48) hours after such defaultpurchase, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be terminate without liability on the part of any non-defaulting Underwriter Underwriters or the Company, Company except that for the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to payment of expenses to be paid or reimbursed pursuant to Sections 5 and 9 borne by the Company and the provisions Underwriters as provided in Section (4)(o) and the indemnity and contribution agreements of the Company and the Underwriters contained in Section 7 6 hereof and Sections 11 through 21Section 9 hereof. Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have for damages caused by its default. If the other underwriters satisfactory to the Representative are obligated or agree to purchase the Securities of a defaulting Underwriter, inclusiveeither the Representative or the Company may postpone the Closing Date for up to five full Business Days in order to effect any changes that may be necessary in the Registration Statement, shall not terminate the Disclosure Package or the Prospectus or in any other document or agreement, and shall remain to file promptly any amendments or any supplements to the Registration Statement or the Disclosure Package or the Prospectus which in full force and effectthe Representative’s opinion may thereby be made necessary.
Appears in 3 contracts
Samples: Underwriting Agreement (Oculus Innovative Sciences, Inc.), Underwriting Agreement (Oculus Innovative Sciences, Inc.), Underwriting Agreement (Oculus Innovative Sciences, Inc.)
Substitution of Underwriters. If any Underwriter or defaults in its obligation to purchase the number of Securities which it has agreed to purchase under this Agreement, the non-defaulting Underwriters shall default in its or their obligations be obligated to purchase shares of Stock hereunder on any Closing Date and (in the aggregate respective proportions which the number of shares Securities set forth opposite the name of each non-defaulting Underwriter in Schedule I hereto bears to the total number of Securities set forth opposite the names of all the non- defaulting Underwriters in Schedule I hereto) the Securities which such the defaulting Underwriter agreed but failed to purchase; except that the non-defaulting Underwriters shall not be obligated to purchase any of the Securities if the total number of Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (exceeds 10%) % of the total number of shares to be purchased by all Underwriters on such Closing DateFirm Securities, the other Underwriters and any non-defaulting Underwriter shall not be obligated severallyto purchase more than 110% of the number of Securities set forth opposite its name in Schedule I hereto purchasable by it pursuant to the terms of Section 4 hereof. If the foregoing maximums are exceeded, in proportion (i) the non-defaulting Underwriters, and any other underwriters satisfactory to their respective commitments hereunderthe Representative who so agree, shall have the right, but shall not be obligated, to purchase (in such proportions as may be agreed upon among them) all the shares Securities. If the non- defaulting Underwriters or the other underwriters satisfactory to the Representative do not elect to purchase the Securities which such the defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the Representatives and the Company for the purchase of such shares by other persons are not made within forty-eight (48) hours after such defaultpurchase, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be terminate without liability on the part of any non-defaulting Underwriter or the Company, Company except that for the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to payment of expenses to be paid or reimbursed pursuant to Sections 5 and 9 borne by the Company and the provisions Underwriters as provided in Section 5 hereof and the indemnity and contribution agreements of the Company and the Underwriters contained in Section 7 8 hereof. Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have for damages caused by its default. If the other underwriters satisfactory to the Representative are obligated or agree to purchase the Securities of a defaulting Underwriter, either the Representative or the Company may postpone the First Closing Date for up to five full Business Days in order to effect any changes that may be necessary in the Registration Statement, the Disclosure Package or the Prospectus or in any other document or agreement, and Sections 11 through 21, inclusive, shall not terminate and shall remain to file promptly any amendments or any supplements to the Registration Statement or the Disclosure Package or the Prospectus which in full force and effectthe Representative’s opinion may thereby be made necessary.
Appears in 3 contracts
Samples: Armour Residential (Armour Residential REIT, Inc.), Armour Residential (Armour Residential REIT, Inc.), Armour Residential (Armour Residential REIT, Inc.)
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock Securities hereunder on the Closing Date or any Option Closing Date and the aggregate number of shares Securities which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares Securities to be purchased by all Underwriters on such Closing Date or Option Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares Securities which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date or Option Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares Securities with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares Securities to be purchased by all Underwriters on such Closing Date or Option Closing Date and arrangements satisfactory to the Representatives remaining Underwriters and the Company for the purchase of such shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock Securities of a defaulting Underwriter or Underwriters on such Closing Date or Option Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date or Option Closing Date for a period of not more than five (5) full business days in order that to permit the Company may to effect whatever changes may thereby be made necessary in the Registration Statement or Statement, the Prospectus, or in any other documents or arrangements, which may thereby be made necessary, and the Company agrees to promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares Securities to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the any other Underwriters Underwriter for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter Underwriters or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 22 and 3, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections Section 5 and 9 and the provisions of Section 7 and Sections 11 through 2118, inclusive, shall not terminate and shall remain in full force and effect.
Appears in 3 contracts
Samples: Underwriting Agreement (ContraVir Pharmaceuticals, Inc.), Underwriting Agreement (Tonix Pharmaceuticals Holding Corp.), Underwriting Agreement (Tonix Pharmaceuticals Holding Corp.)
Substitution of Underwriters. If any Underwriter or Underwriters shall ---------------------------- default in its or their obligations to purchase shares of Stock hereunder on any Closing Date and the aggregate number of shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Dateunderwritten, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Datepurchase. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date underwritten and arrangements satisfactory to the Representatives and the Company for the purchase of such shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 1012, (i) the Company shall have the right to postpone such the Closing Date Dates for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 12 shall be without liability on the part of any non-defaulting Underwriter or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to for expenses to be paid or reimbursed pursuant to Sections Section 5 and 9 and except for the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect6.
Appears in 3 contracts
Samples: Underwriting Agreement (V I Technologies Inc), Underwriting Agreement (Schein Pharmaceutical Inc), Aastrom Biosciences Inc
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock Shares and/or Warrants hereunder on any the Closing Date and the aggregate number of shares Shares and Warrants which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares Shares and/or Warrants to be purchased by all Underwriters on such Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares Shares and/or Warrants which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. Date If any Underwriter or Underwriters shall so default and the aggregate number of shares Shares and/or Warrants with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares Shares and/or Warrants to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the Representatives remaining Underwriters and the Company for the purchase of such shares Shares and/or Warrants by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock Shares and/or Warrants of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 1012, (i) the Company shall have the right to postpone such Closing Date for a period of not more than five (5) full business days in order that to permit the Company may to effect whatever changes may thereby be made necessary in the Registration Statement or Statement, the Final Prospectus, or in any other documents or arrangements, which may thereby be made necessary, and the Company agrees to promptly to file any amendments to the Registration Statement or supplements to the Final Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares Shares and/or Warrants to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the any other Underwriters Underwriter for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter Underwriters or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 2 and 9 3 and the provisions of Section 7 and Sections 11 9 through 2117, inclusive, shall not terminate and shall remain in full force and effect.
Appears in 3 contracts
Samples: Underwriting Agreement (Real Goods Solar, Inc.), Underwriting Agreement (Real Goods Solar, Inc.), Underwriting Agreement (Real Goods Solar, Inc.)
Substitution of Underwriters. If any Underwriter or defaults in its obligation to purchase the principal amount of the Notes which it has agreed to purchase under this Agreement, the non-defaulting Underwriters shall default in its or their obligations be obligated to purchase shares (in the respective proportions which the principal amount of Stock hereunder on the Notes set forth opposite the name of each non-defaulting Underwriter in Schedule I hereto bears to the total principal amount of the Notes less the principal amount of the Notes the defaulting Underwriter agreed to purchase set forth in Schedule I hereto) the principal amount of the Notes which the defaulting Underwriter agreed but failed to purchase; except that the non-defaulting Underwriters shall not be obligated to purchase any Closing Date and of the aggregate number Notes if the total principal amount of shares the Notes which such the defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) 9.09% of the total number principal amount of shares the Notes, and any non-defaulting Underwriters shall not be obligated to be purchased by all Underwriters on such Closing Datepurchase more than 110% of the principal amount of the Notes set forth opposite its name in Schedule I hereto. If the foregoing maximums are exceeded, the non-defaulting Underwriters, and any other Underwriters underwriters satisfactory to you who so agree, shall have the right, but shall not be obligated severally, in proportion to their respective commitments hereunderobligated, to purchase (in such proportions as may be agreed upon among them) all of the shares which such Notes. If the non-defaulting Underwriters or the other underwriters satisfactory to the Underwriters do not elect to purchase the Notes that the defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the Representatives and the Company for the purchase of such shares by other persons are not made within forty-eight (48) 36 hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be terminate without liability on the part of any non-defaulting Underwriter or the Company, except that for the representations, warranties, covenants, indemnities, indemnity and contribution agreements of the Company and other statements set forth the Underwriters contained in Section 26 hereof. As used in this Agreement, the obligations with respect to expenses to be paid or reimbursed term "Underwriter" includes any person substituted for an Underwriter pursuant to Sections 5 this Section 7. Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have for damages caused by its default. If the non-defaulting Underwriters or the other underwriters satisfactory to you are obligated or agree to purchase the Notes of a defaulting Underwriter, either you or the Company may postpone the Closing Date for up to seven full Business Days in order to effect any changes that may be necessary in the Registration Statement or the Prospectus or in any other document or agreement, and 9 and to file promptly any amendments or any supplements to the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain Registration Statement or the Prospectus which in full force and effectyour opinion may thereby be made necessary.
Appears in 3 contracts
Samples: Underwriting Agreement (Arden Realty Limited Partnership), Arden Realty Limited Partnership, Arden Realty Limited Partnership
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock Securities hereunder on any the Closing Date and the aggregate number of shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares to be purchased by all Underwriters on such the Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such the Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such the Closing Date and arrangements satisfactory to the Representatives Representative and the Company for the purchase of such shares by other persons are not made within forty-forty eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock Securities of a defaulting Underwriter or Underwriters on such the Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such the Closing Date for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement Statements or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement Statements or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections Section 5 and 9 and the provisions of Section 7 and Sections 11 through 2120, inclusive, shall not terminate and shall remain in full force and effect.
Appears in 3 contracts
Samples: Underwriting Agreement (Catalyst Pharmaceuticals, Inc.), Underwriting Agreement (Catalyst Pharmaceutical Partners, Inc.), Catalyst Pharmaceutical Partners, Inc.
Substitution of Underwriters. If any Underwriter or defaults in its obligation to purchase the number of Securities which it has agreed to purchase under this Agreement, the non-defaulting Underwriters shall default in its or their obligations be obligated to purchase shares of Stock hereunder on any Closing Date and (in the aggregate respective proportions which the number of shares Securities set forth opposite the name of each non-defaulting Underwriter in Schedule I hereto bears to the total number of Securities set forth opposite the names of all the non- defaulting Underwriters in Schedule I hereto) the Securities which such the defaulting Underwriter agreed but failed to purchase; except that the non-defaulting Underwriters shall not be obligated to purchase any of the Securities if the total number of Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (exceeds 10%) % of the total number of shares to be purchased by all Underwriters on such Closing DateFirm Securities, the other Underwriters and any non-defaulting Underwriter shall not be obligated severallyto purchase more than 110% of the number of Securities set forth opposite its name in Schedule I hereto purchasable by it pursuant to the terms of Section 4 hereof. If the foregoing maximums are exceeded, in proportion (i) the non-defaulting Underwriters, and any other underwriters satisfactory to their respective commitments hereunderthe Representative who so agree, shall have the right, but shall not be obligated, to purchase (in such proportions as may be agreed upon among them) all the shares Securities. If the non- defaulting Underwriters or the other underwriters satisfactory to the Representative do not elect to purchase the Securities which such the defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the Representatives and the Company for the purchase of such shares by other persons are not made within forty-eight (48) hours after such defaultpurchase, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be terminate without liability on the part of any non-defaulting Underwriter or the Company, Company except that for the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to payment of expenses to be paid or reimbursed pursuant to Sections 5 and 9 borne by the Company and the provisions Underwriters as provided in Section 5 hereof and the indemnity and contribution agreements of the Company and the Underwriters contained in Section 7 8 hereof. Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have for damages caused by its default. If the other underwriters satisfactory to the Representative are obligated or agree to purchase the Securities of a defaulting Underwriter, either the Representative or the Company may postpone the First Closing Date for up to five full Business Days in order to effect any changes that may be necessary in the Registration Statement, the Time of Sale Disclosure Package or the Prospectus or in any other document or agreement, and Sections 11 through 21, inclusive, shall not terminate and shall remain to file promptly any amendments or any supplements to the Registration Statement or the Time of Sale Disclosure Package or the Prospectus which in full force and effectthe Representative’s opinion may thereby be made necessary.
Appears in 3 contracts
Samples: Armour Residential (Armour Residential REIT, Inc.), Armour Residential (Armour Residential REIT, Inc.), Armour Residential (Armour Residential REIT, Inc.)
Substitution of Underwriters. If any Underwriter or Underwriters ---------------------------- shall default fail to take up and pay for the number of Firm Shares agreed by such Underwriter or Underwriters to be purchased hereunder upon tender of such Firm Shares in its accordance with the terms hereof, and if the aggregate number of Firm Shares which such defaulting Underwriter or their obligations Underwriters so agreed but failed to purchase shares does not exceed 10% of Stock hereunder on the Firm Shares, the remaining Underwriters shall be obligated, severally in proportion to their respective commitments hereunder, to take up and pay for the Firm Shares of such defaulting Underwriter or Underwriters. If any Closing Date Underwriter or Underwriters so defaults and the aggregate number of shares Firm Shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (take up and pay for exceeds 10%) % of the total number Firm Shares, the remaining Underwriters shall have the right, but shall not be obligated, to take up and pay for (in such proportions as may be agreed upon among them) the Firm Shares which the defaulting Underwriter or Underwriters so agreed but failed to purchase. If such remaining Underwriters do not, at the Closing Date, take up and pay for the Firm Shares which the defaulting Underwriter or Underwriters so agreed but failed to purchase, the Closing Date shall be postponed for twenty- four (24) hours to allow the several Underwriters the privilege of shares substituting within twenty-four (24) hours (including non-business hours) another underwriter or underwriters (which may include any nondefaulting Underwriter) satisfactory to be purchased the Company. If no such underwriter or underwriters shall have been substituted as aforesaid by all Underwriters on such postponed Closing Date, the other Underwriters shall Closing Date may, at the option of the Company, be obligated severallypostponed for a further twenty-four (24) hours, in proportion if necessary, to their respective commitments hereunderallow the Company the privilege of finding another underwriter or underwriters, satisfactory to you, to purchase the shares Firm Shares which such the defaulting Underwriter or Underwriters so agreed but failed to purchase on such Closing Datepurchase. If any Underwriter or Underwriters it shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the Representatives and the Company arranged for the purchase of such shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby underwriter or agree underwriters to take up all or part the Firm Shares of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 1011, (i) the Company shall have the right to postpone such Closing Date the time of delivery for a period of not more than five seven (57) full business days days, in order that the Company may to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers number of shares Firm Shares to be purchased by the remaining Underwriters and substituted underwriter or substituted Underwriters underwriters shall be taken as the basis of their underwriting obligation obligation. If the remaining Underwriters shall not take up and pay for all purposes of this Agreement. Nothing herein contained shall relieve any such Firm Shares so agreed to be purchased by the defaulting Underwriter of its liability to or Underwriters or substitute another underwriter or underwriters as aforesaid and the Company shall not find or shall not elect to seek another underwriter or underwriters for such Firm Shares as aforesaid, then this Agreement shall terminate. In the other Underwriters for damages occasioned by its default hereunder. Any event of any termination of this Agreement pursuant to the preceding paragraph of this Section 10 shall be without liability on the part of any non-defaulting Underwriter or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 211, the obligations with respect Company shall not be liable to expenses any Underwriter (except as provided in Sections 7 and 9 hereof) nor shall any Underwriter (other than an Underwriter who shall have failed, otherwise than for some reason permitted under this Agreement, to purchase the number of Firm Shares agreed by such Underwriter to be paid or reimbursed pursuant purchased hereunder, which Underwriter shall remain liable to the Company and the other Underwriters for damages, if any, resulting from such default) be liable to the Company (except to the extent provided in Sections 5 7 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effecthereof).
Appears in 3 contracts
Samples: Underwriting Agreement (CPS Systems Inc), Underwriting Agreement (CPS Systems Inc), Underwriting Agreement (CPS Systems Inc)
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations obligation to purchase shares of Stock hereunder on any the Closing Date the Shares and the aggregate number of shares which such defaulting Underwriter or Underwriters Warrants agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares to be purchased by all Underwriters hereunder on such the Closing Date, the Representative shall have the right, within 36 hours thereafter, to make arrangements for one or more of the non-defaulting Underwriters, or any other Underwriters shall be obligated severally, in proportion to their respective commitments hereunderunderwriters, to purchase such Shares and Warrants on the shares terms contained herein. If, however, the Representative shall not have completed such arrangements within such 36-hour period, then the Company shall be entitled to a further period of thirty-six hours within which such defaulting Underwriter to procure another party or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date and arrangements other parties satisfactory to the Representatives Underwriters to purchase such Shares and the Company Warrants on such terms. If, after giving effect to any arrangements for the purchase of such shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock Shares and Warrants of a defaulting Underwriter or Underwriters by the Representative and the Company as provided above, the aggregate number of Shares and Warrants which remains unpurchased on the Closing Date does not exceed one-eleventh of the aggregate number of all the Shares and Warrants that all the Underwriters are obligated to purchase on such Closing Date as provided date, then the Company shall have the right to require each non-defaulting Underwriter to purchase the number of Shares and Warrants which such Underwriter agreed to purchase hereunder at such date and, in this Section 10addition, to require each non-defaulting Underwriter to purchase its pro rata share (ibased on the number of Shares and Warrants which such Underwriter agreed to purchase hereunder) of the Shares and Warrants of such defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing herein shall relieve a defaulting Underwriter from liability for its default. In any such case, either the Representative or the Company shall have the right to postpone such the Closing Date for a period of not more than five (5) full business seven days in order that the Company may to effect whatever any necessary changes may thereby be made and arrangements (including any necessary in amendments or supplements to the Registration Statement or the Prospectus, Prospectus or in any other documents or arrangementsdocuments), and the Company agrees promptly to file promptly any amendments to the Registration Statement or supplements to the Prospectus which in the opinion of the Company and the Underwriters and their counsel may thereby be made necessary. If, after giving effect to any arrangements for the purchase of the Shares and (ii) Warrants of a defaulting Underwriter or Underwriters by the respective numbers Representative and the Company as provided above, the aggregate number of shares such Shares and Warrants which remains unpurchased exceeds 10% of the aggregate number of all the Shares and Warrants to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of at such date, then this Agreement pursuant to this Section 10 shall be terminate, without liability on the part of any non-defaulting Underwriter or to the Company, and without liability on the part of the Company, except that as provided in Sections 4(b), 5, 6 and 7. The provisions of this Section 8 shall not in any way affect the representations, warranties, covenants, indemnities, agreements and other statements set forth liability of any defaulting Underwriter to the Company or the nondefaulting Underwriters arising out of such default. The term “Underwriter” as used in this Agreement shall include any person substituted under this Section 2, the obligations 8 with like effect as if such person had originally been a party to this Agreement with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effectsuch Shares.
Appears in 3 contracts
Samples: Underwriting Agreement (VistaGen Therapeutics, Inc.), Underwriting Agreement (VistaGen Therapeutics, Inc.), Underwriting Agreement (Actinium Pharmaceuticals, Inc.)
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock hereunder on any the Closing Date and the aggregate number of shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares to be purchased by all Underwriters on such the Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunderset forth on Schedule I hereto, to purchase the shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such the Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such the Closing Date and arrangements satisfactory to the Representatives Representative and the Company for the purchase of such shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock of a defaulting Underwriter or Underwriters on such the Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such the Closing Date for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement Statements or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement Statements or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed to non-defaulting Underwriters pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect.
Appears in 3 contracts
Samples: Underwriting Agreement (Cytokinetics Inc), Underwriting Agreement (Oncothyreon Inc.), Convertible Preferred Stock (Oncothyreon Inc.)
Substitution of Underwriters. If any Underwriter or Underwriters shall default fail to take up and pay for the number of Firm Securities agreed by such Underwriter or Underwriters to be purchased hereunder upon tender of such Firm Securities in its accordance with the terms hereof, and if the aggregate number of Firm Securities which such defaulting Underwriter or their obligations Underwriters so agreed but failed to purchase shares does not exceed 10% of Stock hereunder on the Firm Securities, the remaining Underwriters shall be obligated, severally in proportion to their respective commitments hereunder, to take up and pay for the Firm Securities of such defaulting Underwriter or Underwriters. If any Closing Date Underwriter or Underwriters so defaults and the aggregate number of shares Firm Securities which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (take up and pay for exceeds 10%) % of the total number Firm Securities, the remaining Underwriters shall have the right, but shall not be obligated, to take up and pay for (in such proportions as may be agreed upon among them) the Firm Securities which the defaulting Underwriter or Underwriters so agreed but failed to purchase. If such remaining Underwriters do not, at the Closing Date, take up and pay for the Firm Securities which the defaulting Underwriter or Underwriters so agreed but failed to purchase, the Closing Date shall be postponed for twenty-four (24) hours to allow the several Underwriters the privilege of shares substituting within twenty-four (24) hours (including non-business hours) another underwriter or underwriters (which may include any nondefaulting Underwriter) satisfactory to be purchased the Company. If no such underwriter or underwriters shall have been substituted as aforesaid by all Underwriters on such postponed Closing Date, the other Underwriters shall Closing Date may, at the option of the Company, be obligated severallypostponed for a further twenty-four (24) hours, in proportion if necessary, to their respective commitments hereunderallow the Company the privilege of finding another underwriter or underwriters, satisfactory to you, to purchase the shares Firm Securities which such the defaulting Underwriter or Underwriters so agreed but failed to purchase on such Closing Datepurchase. If any Underwriter or Underwriters it shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the Representatives and the Company arranged for the purchase of such shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby underwriter or agree underwriters to take up all or part the Firm Securities of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 109, (i) the Company shall have the right to postpone such Closing Date the time of delivery for a period of not more than five seven (57) full business days days, in order that the Company may to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may 27 thereby be made necessary, and (ii) the respective numbers number of shares Firm Securities to be purchased by the remaining Underwriters and substituted underwriter or substituted Underwriters underwriters shall be taken as the basis of their underwriting obligation obligation. If the remaining Underwriters shall not take up and pay for all purposes of this Agreement. Nothing herein contained shall relieve any such Firm Securities so agreed to be purchased by the defaulting Underwriter of its liability to or Underwriters or substitute another underwriter or underwriters as aforesaid and the Company shall not find or shall not elect to seek another underwriter or underwriters for such Firm Securities as aforesaid, then this Agreement shall terminate. In the other Underwriters for damages occasioned by its default hereunder. Any event of any termination of this Agreement pursuant to the preceding paragraph of this Section 10 shall be without liability on the part of any non-defaulting Underwriter or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 29, the obligations with respect Company shall not be liable to expenses to be paid or reimbursed pursuant to any Underwriter (except as provided in Sections 5 and 9 7 hereof) nor shall any Underwriter (other than an Underwriter who shall have failed, otherwise than for some reason permitted under this Agreement, to purchase the number of Firm Securities agreed by such Underwriter to be purchased hereunder, which Underwriter shall remain liable to the Company and the provisions of Section 7 other Underwriters for damages, if any, resulting from such default) be liable to the Company (except to the extent provided in Sections 5 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect8 hereof).
Appears in 2 contracts
Samples: Underwriting Agreement (Mobile Mini Inc), Underwriting Agreement (Mobile Mini Inc)
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock hereunder on any Closing Date and the aggregate number of shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the Representatives and the Company for the purchase of such shares by other persons are not made within forty-eight (48) hours after such default, (x) this Agreement shall terminate, in the case of any such default on the Closing Date or (y) the non-defaulting Underwriters may terminate their obligation to purchase the shares of Optional Stock to be purchased by the defaulting Underwriters or all Underwriters, in the case of any such default on any Option Closing Date. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect.
Appears in 2 contracts
Samples: Underwriting Agreement (Aeglea BioTherapeutics, Inc.), Underwriting Agreement (Aeglea BioTherapeutics, Inc.)
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock Shares hereunder on any Closing Date and the aggregate number of shares Shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares Shares to be purchased by all Underwriters on such Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares Shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares Shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares Shares to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the Representatives Representative and the Company for the purchase of such shares Shares by other persons are not made within forty-forty eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock Shares of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 1011, (i) the Company shall have the right to postpone such Closing Date Dates for a period of not more than five (5) full business days Business Days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement Statements or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement Statements or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares Shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 11 shall be without liability on the part of any non-defaulting Underwriter or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 4(u) and 9 10 and the provisions of Section 7 and Sections 11 12 through 2119, inclusive, shall not terminate and shall remain in full force and effect.
Appears in 2 contracts
Samples: Common Stock (TherapeuticsMD, Inc.), Underwriting Agreement (TherapeuticsMD, Inc.)
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock hereunder on any Closing Date and the aggregate number of shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the Representatives Representative and the Company for the purchase of such shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 through 2122, inclusive, shall not terminate and shall remain in full force and effect.
Appears in 2 contracts
Samples: Underwriting Agreement (ClearPoint Neuro, Inc.), Underwriting Agreement (ClearPoint Neuro, Inc.)
Substitution of Underwriters. If any Underwriter or Underwriters shall default fail to take up and pay for the number of Firm Shares agreed by such Underwriter or Underwriters to be purchased hereunder upon tender of such Firm Shares in its accordance with the terms hereof, and if the aggregate number of Firm Shares which such defaulting Underwriter or their obligations Underwriters so agreed but failed to purchase shares does not exceed 10% of Stock hereunder on the Firm Shares, the remaining Underwriters shall be obligated, severally in proportion to their respective commitments hereunder, to take up and pay for the Firm Shares of such defaulting Underwriter or Underwriters. If any Closing Date Underwriter or Underwriters so defaults and the aggregate number of shares Firm Shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (take up and pay for exceeds 10%) % of the total number Firm Shares, the remaining Underwriters shall have the right, but shall not be obligated, to take up and pay for (in such proportions as may be agreed upon among them) the Firm Shares which the defaulting Underwriter or Underwriters so agreed but failed to purchase. If such remaining Underwriters do not, at the Closing Date, take up and pay for the Firm Shares which the defaulting Underwriter or Underwriters so agreed but failed to purchase, the Closing Date shall be postponed for twenty- four (24) hours to allow the several Underwriters the privilege of shares substituting within twenty-four (24) hours (including non-business hours) another underwriter or underwriters (which may include any nondefaulting Underwriter) satisfactory to be purchased the Company. If no such underwriter or underwriters shall have been substituted as aforesaid by all Underwriters on such postponed Closing Date, the other Underwriters shall Closing Date may, at the option of the Company, be obligated severallypostponed for a further twenty-four (24) hours, in proportion if necessary, to their respective commitments hereunderallow the Company the privilege of finding another underwriter or underwriters, satisfactory to you, to purchase the shares Firm Shares which such the defaulting Underwriter or Underwriters so agreed but failed to purchase on such Closing Datepurchase. If any Underwriter or Underwriters it shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the Representatives and the Company arranged for the purchase of such shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby underwriter or agree underwriters to take up all or part the Firm Shares of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 1011, (i) the Company shall have the right to postpone such Closing Date the time of delivery for a period of not more than five seven (57) full business days days, in order that the Company may to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers number of shares Firm Shares to be purchased by the remaining Underwriters and substituted underwriter or substituted Underwriters underwriters shall be taken as the basis of their underwriting obligation obligation. If the remaining Underwriters shall not take up and pay for all purposes of this Agreement. Nothing herein contained shall relieve any such Firm Shares so agreed to be purchased by the defaulting Underwriter of its liability to or Underwriters or substitute another underwriter or underwriters as aforesaid and the Company shall not find or shall not elect to seek another underwriter or underwriters for such Firm Shares as aforesaid, then this Agreement shall terminate. In the other Underwriters for damages occasioned by its default hereunder. Any event of any termination of this Agreement pursuant to the preceding paragraph of this Section 10 shall be without liability on the part of any non-defaulting Underwriter or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 211, the obligations with respect Company shall not be liable to expenses any Underwriter (except as provided in Sections 7 and 9 hereof) nor shall any Underwriter (other than an Underwriter who shall have failed, otherwise than for some reason permitted under this Agreement, to purchase the number of Firm Shares agreed by such Underwriter to be paid or reimbursed pursuant purchased hereunder, which Underwriter shall remain liable to the Company and the other Underwriters for damages, if any, resulting from such default) be liable to the Company (except to the extent provided in Sections 5 7 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effecthereof).
Appears in 2 contracts
Samples: Underwriting Agreement (Cost U Less Inc), Underwriting Agreement (CPS Systems Inc)
Substitution of Underwriters. If any Underwriter one or more of the Underwriters shall default in its fail or their obligations refuse at the Closing Date to purchase shares any of Stock hereunder on any Closing Date the Securities which it or they have agreed to purchase hereunder, and the aggregate number principal amount of shares Securities which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase does is not exceed ten percent (10%) more than one-tenth of the total number aggregate principal amount of shares to be purchased by all Underwriters on such Closing DateSecurities, the other Underwriters shall be obligated obligated, severally, in proportion to their respective commitments hereunder, to purchase the shares Securities which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase, in the proportions which the principal amount of Securities which they have respectively agreed to purchase on pursuant to Section 1 hereof bears to the aggregate principal amount of Securities which all such Closing Datenon-defaulting Underwriters have so agreed to purchase, or in such other proportions as such non-defaulting Underwriters may specify; provided that in no event shall the maximum principal amount of Securities which any Underwriter has become obligated to purchase pursuant to Section 1 hereof be increased pursuant to this Section 8 by more than one-ninth of the principal amount of Securities agreed to be purchased by such Underwriter without the prior written consent of such Underwriter. If any Underwriter or Underwriters shall so default fail or refuse at the Closing Date to purchase any Securities and the aggregate number principal amount of shares with respect to Securities which such default defaulting Underwriter or defaults occur is more than ten percent (10%) Underwriters agreed but failed or refused to purchase exceeds one-tenth of the total number aggregate principal amount of shares to be purchased by all Underwriters on such Closing Date the Securities and arrangements satisfactory to the Representatives any non-defaulting Underwriter and the Company for the purchase of such shares by other persons Securities are not made within forty-eight (48) 48 hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be will terminate without liability on the part of any non-defaulting Underwriter or the CompanyCompany for the purchase or sale of any Securities under this Agreement. In any such case either the Underwriters or the Company shall have the right to postpone the Closing Date, except but in no event for longer than seven days, in order that the representationsrequired changes, warrantiesif any, covenants, indemnities, agreements in the Registration Statement and in the Prospectus or in any other statements set forth in Section 2, the obligations with respect to expenses to documents or arrangements may be paid or reimbursed effected. Any action taken pursuant to Sections 5 and 9 and the provisions of this Section 7 and Sections 11 through 21, inclusive, 8 shall not terminate and shall remain relieve any defaulting Underwriter from liability in full force and effectrespect of any default of such Underwriter under this Agreement.
Appears in 2 contracts
Samples: Underwriting Agreement (Qwest Communications International Inc), Underwriting Agreement (Qwest Communications International Inc)
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock Shares hereunder on the Closing Date or any Option Closing Date and the aggregate number of shares Shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares Shares to be purchased by all Underwriters on such Closing Date or Option Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares Shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date or Option Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares Shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares Shares to be purchased by all Underwriters on such Closing Date or Option Closing Date and arrangements satisfactory to the Representatives remaining Underwriters and the Company for the purchase of such shares Shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock Shares of a defaulting Underwriter or Underwriters on such Closing Date or Option Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date or Option Closing Date for a period of not more than five (5) full business days in order that to permit the Company may to effect whatever changes may thereby be made necessary in the Registration Statement or Statement, the Final Prospectus, or in any other documents or arrangements, which may thereby be made necessary, and the Company agrees to promptly to file any amendments to the Registration Statement or supplements to the Final Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares Shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the any other Underwriters Underwriter for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter Underwriters or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 22 and 3, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections Section 5 and 9 and the provisions of Section 5(a)(viii) and Section 7 and Sections 11 through 2119, inclusive, shall not terminate and shall remain in full force and effect. As used in this Agreement, the term “Underwriter” shall be deemed to include any person substituted for a defaulting Underwriter under this Section 10. Any action taken under this Section 10 shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.
Appears in 2 contracts
Samples: Underwriting Agreement (Crown Electrokinetics Corp.), Underwriting Agreement (Crown Electrokinetics Corp.)
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock Shares, Pre-Funded Warrants and/or Warrants hereunder on the Closing Date or any Option Closing Date and the aggregate number of shares Shares, Pre-Funded Warrants and/or Warrants which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares Securities to be purchased by all Underwriters on such Closing Date or Option Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares Shares, Pre-Funded Warrants and/or Warrants which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date or Option Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares Shares, Pre-Funded Warrants and/or Warrants with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares Shares, Pre-Funded Warrants and/or Warrants to be purchased by all Underwriters on such Closing Date or Option Closing Date and arrangements satisfactory to the Representatives remaining Underwriters and the Company for the purchase of such shares Shares, Pre-Funded Warrants and/or Warrants by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock Shares, the Pre-Funded Warrants and/or Warrants of a defaulting Underwriter or Underwriters on such Closing Date or Option Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date or Option Closing Date for a period of not more than five (5) full business days in order that to permit the Company may to effect whatever changes may thereby be made necessary in the Registration Statement or Statement, the Final Prospectus, or in any other documents or arrangements, which may thereby be made necessary, and the Company agrees to promptly to file any amendments to the Registration Statement or supplements to the Final Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares Shares, the Pre-Funded Warrants and/or Warrants to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the any other Underwriters Underwriter for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter Underwriters or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 22 and 3, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections Section 5 and 9 and the provisions of Section 7 5(a)(viii) and Section 9 and Sections 11 through 2119, inclusive, shall not terminate and shall remain in full force and effect. As used in this Agreement, the term “Underwriter” shall be deemed to include any person substituted for a defaulting Underwriter under this Section 10. Any action taken under this Section 10 shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.
Appears in 2 contracts
Samples: Underwriting Agreement (Myomo Inc), Underwriting Agreement (Myomo Inc)
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock Units hereunder on any Closing Date and the aggregate number of shares Units which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares Units to be purchased by all Underwriters on such Closing DateUnderwriters, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares Units which such defaulting Underwriter or Underwriters agreed but failed to purchase on such the Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares Units with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares Units to be purchased by all Underwriters on such Closing Date hereunder and arrangements satisfactory to the Representatives Representative and the Company for the purchase of such shares Units by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock Units of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such the Closing Date for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares Units to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, hereunder shall not terminate and shall remain in full force and effect.
Appears in 2 contracts
Samples: Underwriting Agreement (Clean Diesel Technologies Inc), Underwriting Agreement (Clean Diesel Technologies Inc)
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock and Warrants hereunder on any the Closing Date and the aggregate number of shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares to be purchased by all Underwriters on such the Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunderset forth on Schedule I hereto, to purchase the shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such the Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such the Closing Date and arrangements satisfactory to the Representatives Representative and the Company for the purchase of such shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock and Warrants of a defaulting Underwriter or Underwriters on such the Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such the Closing Date for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement Statements or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement Statements or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-non defaulting Underwriter or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed to non-defaulting Underwriters pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect.
Appears in 2 contracts
Samples: Underwriting Agreement (Cytokinetics Inc), Underwriting Agreement (Cytokinetics Inc)
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock Shares hereunder on any Closing Date and the aggregate number of shares Shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares Shares to be purchased by all Underwriters on such Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares Shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares Shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares Shares to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the Representatives remaining Underwriters and the Company for the purchase of such shares by other persons are not made within forty-forty eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock Shares of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares Shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the any other Underwriters Underwriter for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-non defaulting Underwriter Underwriters or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 22 and 3, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections Section 5 and 9 and the provisions of Section 7 and Sections 11 through 2118, inclusive, shall not terminate and shall remain in full force and effect.
Appears in 2 contracts
Samples: Underwriting Agreement (Pioneer Power Solutions, Inc.), Underwriting Agreement (Pioneer Power Solutions, Inc.)
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock Units, Shares and/or Warrants hereunder on any the Closing Date and the aggregate number of shares Units, Shares and/or Warrants which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares Units, Shares and/or Warrants to be purchased by all Underwriters on such Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares Units, Shares and/or Warrants which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares Units, Shares and/or Warrants with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares Units, Shares and/or Warrants to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the Representatives remaining Underwriters and the Company for the purchase of such shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock Units, Shares and/or Warrants of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date for a period of not more than five (5) full business days in order that to permit the Company may to effect whatever changes may thereby be made necessary in the Registration Statement or Statement, the Prospectus, or in any other documents or arrangements, which may thereby be made necessary, and the Company agrees to promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares Units, Shares and/or Warrants to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the any other Underwriters Underwriter for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-non defaulting Underwriter Underwriters or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 22 and 3, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections Section 5 and 9 and the provisions of Section 7 and Sections 11 through 2118, inclusive, shall not terminate and shall remain in full force and effect.
Appears in 2 contracts
Samples: Underwriting Agreement (Brainstorm Cell Therapeutics Inc.), Underwriting Agreement (Brainstorm Cell Therapeutics Inc.)
Substitution of Underwriters. If any one or more of the Underwriters shall fail or refuse (otherwise than for a reason sufficient to justify the termination of this Agreement under the provisions of Section 7 or 11 hereof) to purchase and pay for (a) in the case of the Closing Date, the number of Firm Shares agreed to be purchased by such Underwriter or Underwriters upon tender to you of such Firm Shares in accordance with the terms hereof or (b) in the case of the Option Closing Date, the number of Additional Shares agreed to be purchased by such Underwriter or Underwriters upon tender to you of such Additional Shares in accordance with the terms hereof, and the number of such Shares shall not exceed 10% of the Firm Shares or Additional Shares required to be purchased on the Closing Date or the Option Closing Date, as the case may be, then each of the non-defaulting Underwriters shall purchase and pay for (in addition to the number of such Shares which it has severally agreed to purchase hereunder) that proportion of the number of Shares which the defaulting Underwriter or Underwriters shall default in its have so failed or their obligations refused to purchase shares of Stock hereunder on any such Closing Date and or Option Closing Date, as the case may be, which the number of Shares agreed to be purchased by such non-defaulting Underwriter bears to the aggregate number of shares which such defaulting Underwriter or Underwriters Shares so agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares which such non-defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to or Option Closing Date, as the Representatives and the Company for the purchase of case may be. In such shares by other persons are not made within forty-eight (48) hours after such defaultcase, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company you shall have the right to postpone the Closing Date or the Option Closing Date, as the case may be, to a date not exceeding seven full business days after the date originally fixed as such Closing Date for a period of not more than five (5) full business days or the Option Closing Date, as the case may be, pursuant to the terms hereof in order that the Company may effect whatever any necessary changes may thereby be made necessary in the Registration Statement Statement, the Prospectus or the Prospectus, or in any other documents or arrangementsarrangements may be made. If one or more of the Underwriters shall fail or refuse (otherwise than for a reason sufficient to justify the termination of this Agreement under the provisions of Section 7 or 11 hereof) to purchase and pay for (a) in the case of the Closing Date, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers number of shares Firm Shares agreed to be purchased by such Underwriter or Underwriters upon tender to you of such Firm Shares in accordance with the remaining terms hereof or (b) in the case of the Option Closing Date, the number of Additional Shares agreed to be purchased by such Underwriter or Underwriters upon tender to you of such Additional Shares in accordance with the terms hereof, and the number of such Shares shall exceed 10% of the Firm Shares or substituted Additional Shares required to be purchased by all the Underwriters shall be taken on the Closing Date or the Option Closing Date, as the basis case may be, then (unless within 48 hours after such default arrangements to your satisfaction shall have been made for the purchase of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting the defaulted Shares by an Underwriter of its liability or Underwriters) and subject to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination provisions of Section 11(b) hereof, this Agreement pursuant to this Section 10 shall be will terminate without liability on the part of any non-defaulting Underwriter or on the Company, part of the Company except that the representations, warranties, covenants, indemnities, agreements and other statements set forth as otherwise provided in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 8 hereof. As used in this Agreement, the term "Underwriter" includes any person substituted for an Underwriter under this paragraph. Nothing in this Section 12, and the provisions of Section 7 and Sections 11 through 21, inclusiveno action taken hereunder, shall not terminate and shall remain relieve any defaulting Underwriter from liability in full force and effectrespect of any default of such Underwriter under this Agreement.
Appears in 2 contracts
Samples: Underwriting Agreement (G&l Realty Corp), Underwriting Agreement (G&l Realty Corp)
Substitution of Underwriters. If any Underwriter or Underwriters shall ---------------------------- default in its or their obligations to purchase shares of Stock hereunder on any Closing Date and the aggregate number of shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Dateunderwritten, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Datepurchase. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date underwritten and arrangements satisfactory to the Representatives and the Company for the purchase of such shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 1012, (i) the Company and the Selling Stockholders shall have the right to postpone such the Closing Date Dates for a period of not more than five (5) full business days in order that the Company and the Selling Stockholders may effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company Company, the Selling Stockholders or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 12 shall be without liability on the part of any non-defaulting Underwriter Underwriter, the Selling Stockholders or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to for expenses to be paid or reimbursed pursuant to Sections Section 5 and 9 and except for the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect6.
Appears in 2 contracts
Samples: Underwriting Agreement (Schein Pharmaceutical Inc), Underwriting Agreement (Schein Pharmaceutical Inc)
Substitution of Underwriters. If any Underwriter or Underwriters shall default fail to take up and pay for the number of Firm Shares agreed by such Underwriter or Underwriters to be purchased hereunder upon tender of such Firm Shares in its accordance with the terms hereof, and if the aggregate number of Firm Shares which such defaulting Underwriter or their obligations Underwriters so agreed but failed to purchase shares does not exceed 10% of Stock hereunder on the Firm Shares, the remaining Underwriters shall be obligated, severally in proportion to their respective commitments hereunder, to take up and pay for the Firm Shares of such defaulting Underwriter or Underwriters. If any Closing Date Underwriter (or Underwriters) so defaults and the aggregate number of shares Firm Shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (take up and pay for exceeds 10%) % of the total number Firm Shares, the remaining Underwriters shall have the right, but shall not be obligated, to take up and pay for (in such proportions as may be agreed upon among them) the Firm Shares which the defaulting Underwriter or Underwriters so agreed but failed to purchase. If such remaining Underwriters do not, at the Closing Date, take up and pay for the Firm Shares which the defaulting Underwriter or Underwriters so agreed but failed to purchase, the Closing Date shall be postponed for twenty-four (24) hours to allow the several Underwriters the privilege of shares substituting within twenty-four (24) hours (including non-business hours) another underwriter or underwriters (which may include any non-defaulting Underwriter) satisfactory to be purchased the Company. If no such underwriter or underwriters shall have been substituted as aforesaid by all Underwriters on such postponed Closing Date, the other Underwriters shall Closing Date may, at the option of the Company, be obligated severallypostponed for a further twenty-four (24) hours, in proportion if necessary, to their respective commitments hereunderallow the Company the privilege of finding another underwriter or underwriters, satisfactory to you, to purchase the shares Firm Shares which such the defaulting Underwriter or Underwriters so agreed but failed to purchase on such Closing Datepurchase. If any Underwriter or Underwriters it shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the Representatives and the Company arranged for the purchase of such shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby underwriter or agree underwriters to take up all or part the Firm Shares of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 1011, (i) the Company shall have the right to postpone such Closing Date the time of delivery for a period of not more than five seven (57) full business days days, in order that the Company may to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or Statement, supplements to the Prospectus or other such documents which may thereby be made necessary, and (ii) the respective numbers number of shares Firm Shares to be purchased by the remaining Underwriters and substituted underwriter or substituted Underwriters underwriters shall be taken as the basis of their underwriting obligation obligation. If the remaining Underwriters shall not take up and pay for all purposes of this Agreement. Nothing herein contained shall relieve any such Firm Shares so agreed to be purchased by the defaulting Underwriter of its liability to or Underwriters or substitute another underwriter or underwriters as aforesaid and the Company shall not find or shall not elect to seek another underwriter or underwriters for such Firm Shares as aforesaid, then this Agreement shall terminate. In the other Underwriters for damages occasioned by its default hereunder. Any event of any termination of this Agreement pursuant to the preceding paragraph of this Section 10 11, neither the Company nor any Selling Shareholder shall be without liability on liable to any Underwriter (except as provided in Sections 6 and 9 hereof) nor shall any Underwriter (other than an Underwriter who shall have failed, otherwise than for some reason permitted under this Agreement, to purchase the part number of any non-defaulting Firm Shares agreed by such Underwriter or to be purchased hereunder, which Underwriter shall remain liable to the Company, the Selling Shareholders and the other Underwriters for damages, if any, resulting from such default) be liable to the Company or any Selling Shareholder (except that to the representations, warranties, covenants, indemnities, agreements and other statements set forth extent provided in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 6 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effecthereof).
Appears in 2 contracts
Samples: Underwriting Agreement (Direct Focus Inc), Underwriting Agreement (Direct Focus Inc)
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock hereunder on any Closing Date and the aggregate number of shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the Representatives Representative and the Company for the purchase of such shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date Dates for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement Statements or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement Statements or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter Underwriter, the Company or the Companyits subsidiaries, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed to non-defaulting Underwriters pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 12 through 21, inclusive, shall not terminate and shall remain in full force and effect.
Appears in 2 contracts
Samples: Underwriting Agreement (InspireMD, Inc.), Underwriting Agreement (InspireMD, Inc.)
Substitution of Underwriters. If any Underwriter or Underwriters ---------------------------- shall default fail to take up and pay for the number of Firm Shares agreed by such Underwriter or Underwriters to be purchased hereunder upon tender of such Firm Shares in its accordance with the terms hereof, and if the aggregate number of Firm Shares which such defaulting Underwriter or their obligations Underwriters so agreed but failed to purchase shares does not exceed 10% of Stock hereunder on the Firm Shares, the remaining Underwriters shall be obligated, severally in proportion to their respective commitments hereunder, to take up and pay for the Firm Shares of such defaulting Underwriter or Underwriters. If any Closing Date Underwriter or Underwriters so defaults and the aggregate number of shares Firm Shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (take up and pay for exceeds 10%) % of the total number Firm Shares, the remaining Underwriters shall have the right, but shall not be obligated, to take up and pay for (in such proportions as may be agreed upon among them) the Firm Shares which the defaulting Underwriter or Underwriters so agreed but failed to purchase. If such remaining Underwriters do not, at the Closing Date, take up and pay for the Firm Shares which the defaulting Underwriter or Underwriters so agreed but failed to purchase, the Closing Date shall be postponed for twenty- four (24) hours to allow the several Underwriters the privilege of shares substituting within twenty-four (24) hours (including non-business hours) another underwriter or underwriters (which may include any nondefaulting Underwriter) satisfactory to be purchased the Company. If no such underwriter or underwriters shall have been substituted as aforesaid by all Underwriters on such postponed Closing Date, the other Underwriters shall Closing Date may, at the option of the Company, be obligated severallypostponed for a further twenty-four (24) hours, in proportion if necessary, to their respective commitments hereunderallow the Company the privilege of finding another underwriter or underwriters, satisfactory to you, to purchase the shares Firm Shares which such the defaulting Underwriter or Underwriters so agreed but failed to purchase on such Closing Datepurchase. If any Underwriter or Underwriters it shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the Representatives and the Company arranged for the purchase of such shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby underwriter or agree underwriters to take up all or part the Firm Shares of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date the time of delivery for a period of not more than five seven (57) full business days days, in order that the Company may to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or Statement, supplements to the Prospectus or other such documents which may thereby be made necessary, and (ii) the respective numbers number of shares Firm Shares to be purchased by the remaining Underwriters and substituted underwriter or substituted Underwriters underwriters shall be taken as the basis of their underwriting obligation obligation. If the remaining Underwriters shall not take up and pay for all purposes of this Agreement. Nothing herein contained shall relieve any such Firm Shares so agreed to be purchased by the defaulting Underwriter of its liability to or Underwriters or substitute another underwriter or underwriters as aforesaid and the Company shall not find or shall not elect to seek another underwriter or underwriters for such Firm Shares as aforesaid, then this Agreement shall terminate. In the other Underwriters for damages occasioned by its default hereunder. Any event of any termination of this Agreement pursuant to the preceding paragraph of this Section 10 10, the Company shall not be without liability on liable to any Underwriter (except as provided in Sections 4(i), 5 and 8 hereof) nor shall any Underwriter (other than an Underwriter who shall have failed, otherwise than for some reason permitted under this Agreement, to purchase the part number of any non-defaulting Firm Shares agreed by such Underwriter or to be purchased hereunder, which Underwriter shall remain liable to the Company, and the other Underwriters for damages, if any, resulting from such default) be liable to the Company (except that to the representations, warranties, covenants, indemnities, agreements and other statements set forth extent provided in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect8 hereof).
Appears in 2 contracts
Samples: Underwriting Agreement (Transwitch Corp /De), Underwriting Agreement (Transwitch Corp /De)
Substitution of Underwriters. If any one or more of the Underwriters shall fail or refuse (otherwise than for a reason sufficient to justify the termination of this Agreement under the provisions of Section 7 or 11 hereof) to purchase and pay for (a) in the case of the Closing Date, the number of Firm Shares agreed to be purchased by such Underwriter or Underwriters upon tender to you of such Firm Shares in accordance with the terms hereof or (b) in the case of the Option Closing Date, the number of Additional Shares agreed to be purchased by such Underwriter or Underwriters upon tender to you of such Additional Shares in accordance with the terms hereof, and the number of such Shares shall not exceed 10% of the Firm Shares or Additional Shares required to be purchased on the Closing Date or the Option Closing Date, as the case may be, then, each of the non-defaulting Underwriters shall purchase and pay for (in addition to the number of such Shares which it has severally agreed to purchase hereunder) that proportion of the number of Shares which the defaulting Underwriter or Underwriters shall default in its have so failed or their obligations refused to purchase shares of Stock hereunder on any such Closing Date and or Option Closing Date, as the case may be, which the number of Shares agreed to be purchased by such non-defaulting Underwriter bears to the aggregate number of shares which such defaulting Underwriter or Underwriters Shares so agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares which such non-defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to or Option Closing Date, as the Representatives and the Company for the purchase of case may be. In such shares by other persons are not made within forty-eight (48) hours after such defaultcase, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company you shall have the right to postpone the Closing Date or the Option Closing Date, as the case may be, to a date not exceeding seven full business days after the date originally fixed as such Closing Date for a period of not more than five (5) full business days or the Option Closing Date, as the case may be, pursuant to the terms hereof in order that the Company may effect whatever any necessary changes may thereby be made necessary in the Registration Statement Statement, the Prospectus or the Prospectus, or in any other documents or arrangementsarrangements may be made. If one or more of the Underwriters shall fail or refuse (otherwise than for a reason sufficient to justify the termination of this Agreement under the provisions of Section 7 or 11 hereof) to purchase and pay for (a) in the case of the Closing Date, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers number of shares Firm Shares agreed to be purchased by such Underwriter or Underwriters upon tender to you of such Firm Shares in accordance with the remaining terms hereof or (b) in the case of the Option Closing Date, the number of Additional Shares agreed to be purchased by such Underwriter or Underwriters upon tender to you of such Additional Shares in accordance with the terms hereof, and the number of such Shares shall exceed 10% of the Firm Shares or substituted Additional Shares required to be purchased by all the Underwriters shall be taken on the Closing Date or the Option Closing Date, as the basis case may be, then (unless within 48 hours after such default arrangements to your satisfaction shall have been made for the purchase of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting the defaulted Shares by an Underwriter of its liability or Underwriters) and subject to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination provisions of Section 11(b) hereof, this Agreement pursuant to this Section 10 shall be will terminate without liability on the part of any non-defaulting Underwriter or on the Company, part of the Company except that the representations, warranties, covenants, indemnities, agreements as otherwise provided in Sections 6 and other statements set forth 8 hereof. As used in Section 2this Agreement, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 term "Underwriter" includes any person substituted for an Underwriter under this paragraph. Nothing in this Section 12, and 9 and the provisions of Section 7 and Sections 11 through 21, inclusiveno action taken hereunder, shall not terminate and shall remain relieve any defaulting Underwriter from liability in full force and effectrespect of any default of such Underwriter under this Agreement.
Appears in 2 contracts
Samples: Underwriting Agreement (Albany Molecular Research Inc), Ragar Corp
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock and Warrants hereunder on any the Closing Date and the aggregate number of shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares to be purchased by all Underwriters on such the Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such the Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such the Closing Date and arrangements satisfactory to the Representatives Representative and the Company for the purchase of such shares by other persons are not made within forty-forty eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock and Warrants of a defaulting Underwriter or Underwriters on such the Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such the Closing Date for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement Statements or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement Statements or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections Section 5 and 9 and the provisions of Section 7 and Sections 11 through 2120, inclusive, shall not terminate and shall remain in full force and effect.
Appears in 2 contracts
Samples: Underwriting Agreement (Catalyst Pharmaceutical Partners, Inc.), Underwriting Agreement (Catalyst Pharmaceutical Partners, Inc.)
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock Securities hereunder on any the Closing Date and the aggregate number of shares Shares and Warrants which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares Shares and Warrants to be purchased by all Underwriters on such Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares Shares and Warrants which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares Shares and Warrants with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares Shares and Warrants to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the Representatives remaining Underwriters and the Company for the purchase of such shares Shares and Warrants by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock Shares and Warrants of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date for a period of not more than five (5) full business days in order that to permit the Company may to effect whatever changes may thereby be made necessary in the Registration Statement or Statement, the Prospectus, or in any other documents or arrangements, which may thereby be made necessary, and the Company agrees to promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares Shares and Warrants to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the any other Underwriters Underwriter for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter Underwriters or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 22 and 3, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections Section 5 and 9 and the provisions of Section 7 and Sections 11 through 2118, inclusive, shall not terminate and shall remain in full force and effect.
Appears in 2 contracts
Samples: Underwriting Agreement (Heat Biologics, Inc.), Underwriting Agreement (Heat Biologics, Inc.)