Representations and Agreements to Survive Delivery Clause Example with 193 Variations from Business Contracts

This page contains Representations and Agreements to Survive Delivery clauses in business contracts and legal agreements. An example clause is provided at the top of the page, followed by clauses with minor variations. You can view the text differences by selecting the "Show Differences" option.
Representations and Agreements to Survive Delivery. Except as the context otherwise requires, all representations, warranties and agreements contained in this Agreement shall be deemed to be representations, warranties and agreements as of the Closing Date or the Option Closing Date, if any, and such representations, warranties and agreements of the Underwriters and the Company, including the indemnity agreements contained in Section 5 hereof, shall remain operative and in full force and effect regardless of any investigation made by or on behalf... of the Underwriters, the Company, and shall survive termination of this Agreement or the issuance and delivery of the Public Securities to the Underwriters until the earlier of the expiration of any applicable statute of limitations and the seventh (7th) anniversary of the later of the Closing Date or the Option Closing Date, if any, at which time the representations, warranties and agreements shall terminate and be of no further force and effect. 40 9. Effective Date of This Agreement and Termination Thereof. 9.1 Effective Date. This Agreement shall become effective on the Effective Date at the time the Registration Statement is declared effective by the Commission. 9.2 Termination. The Representative shall have the right to terminate this Agreement at any time prior to the Closing Date, (i) if any domestic or international event or act or occurrence has materially disrupted, or in the Representative's opinion will in the immediate future materially disrupt, general securities markets in the United States; or (ii) if trading on the NYSE, the NYSE American, the Nasdaq Global Select Market, the Nasdaq Global Market, or the Nasdaq Capital Market or quoted on the over the counter market shall have been suspended, or minimum or maximum prices for trading shall have been fixed, or maximum ranges for prices for securities shall have been fixed, or maximum ranges for prices for securities shall have been required by FINRA or by order of the Commission or any other government authority having jurisdiction, or (iii) if the United States shall have become involved in a new war or an increase in existing major hostilities, or (iv) if a banking moratorium has been declared by a New York State or Federal authority, or (v) if a moratorium on foreign exchange trading has been declared which materially adversely impacts the United States securities market, or (vi) if the Company shall have sustained a material loss by fire, flood, accident, hurricane, earthquake, theft, sabotage or other calamity or malicious act which, whether or not such loss shall have been insured, will, in the Representative's sole opinion, make it inadvisable to proceed with the delivery of the Units, or (vii) if the Company is in material breach of any of its representations, warranties or covenants hereunder, or (viii) if the Representative shall have become aware after the date hereof of such a material adverse change in the conditions of the Company, or such adverse material change in general market conditions, including without limitation as a result of terrorist activities after the date hereof, as in the Representative's sole judgment would make it impracticable to proceed with the offering, sale and/or delivery of the Units or to enforce contracts made by the Underwriters for the sale of the Public Securities. 9.3 Expenses. If this Agreement shall be terminated pursuant to Section 6 hereof, the Company shall not then be under any liability to any Underwriter; but, if for any other reason, any Units are not delivered by or on behalf of the Company as provided herein or the Underwriters decline to purchase the Units for any reason permitted under this Agreement, within the time specified herein or any extensions thereof pursuant to the terms herein, (i) the obligations of the Company to pay the out of pocket accountable expenses related to the transactions contemplated herein shall be governed by Section 3.10 hereof, and (ii) the Company shall reimburse the Representative for any reasonable and accountable costs and expenses incurred in connection with enforcing any provisions of this Agreement. 9.4 Indemnification. Notwithstanding any contrary provision contained in this Agreement, any election hereunder or any termination of this Agreement, and whether or not this Agreement is otherwise carried out, the provisions of Section 5 shall not be in any way affected by such election or termination or failure to carry out the terms of this Agreement or any part hereof. View More
Found in FG Merger Corp. contract

Variations of a "Representations and Agreements to Survive Delivery" Clause from Business Contracts

Representations and Agreements to Survive Delivery. Except as the context otherwise requires, all All representations, warranties and agreements contained in this Agreement shall be deemed to be representations, warranties and agreements as of the Closing Date or the Option Closing Date, if any, and such representations, warranties warranties, and agreements of the Company contained herein or in certificates delivered pursuant hereto, including, but not limited to, the agreements of the several Underwriters and the Company, including the indemnit...y agreements Company contained in Section 5 7 and Section 9 hereof, shall remain operative and in full force and effect regardless of any investigation made by or on behalf of the Underwriters, several Underwriters or any controlling person thereof, or the Company, Company or any of its officers, directors, or controlling persons, and shall survive termination of this Agreement or delivery of, and payment for, the issuance Shares to and delivery of the Public Securities to by the Underwriters until the earlier of the expiration of any applicable statute of limitations and the seventh (7th) anniversary of the later of the Closing Date or the Option Closing Date, if any, at which time the representations, warranties and agreements shall terminate and be of no further force and effect. 40 9. Effective Date of This Agreement and Termination Thereof. 9.1 Effective Date. hereunder. 20 12. Effectiveness; Defaulting Underwriters. This Agreement shall become effective upon the execution and delivery hereof by the parties hereto. If, on the Effective Closing Date at or an Option Closing Date, as the time case may be, any one or more of the Registration Statement Underwriters shall fail or refuse to purchase Shares that it has or they have agreed to purchase hereunder on such date, and the aggregate number of Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase is declared effective not more than 10% of the aggregate number of the Shares to be purchased on such date, the other Underwriters shall be obligated severally in the proportions that the number of Firm Shares set forth opposite their respective names in Schedule I bears to the aggregate number of Firm Shares set forth opposite the names of all such non-defaulting Underwriters, or in such other proportions as you may specify, to purchase the Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such date; provided that in no event shall the number of Shares that any Underwriter has agreed to purchase pursuant to this Agreement be increased pursuant to this Section 12 by an amount in excess of 10% of such number of Shares without the Commission. 9.2 Termination. The Representative written consent of such Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase Firm Shares and the aggregate number of Firm Shares with respect to which such default occurs is more than 10% of the aggregate number of Firm Shares to be purchased on such date, and arrangements satisfactory to you and the Company for the purchase of such Firm Shares are not made within 36 hours after such default, this Agreement shall terminate without liability on the part of any non-defaulting Underwriter or the Company. In any such case either you or the Company shall have the right to terminate this Agreement at any time prior to postpone the Closing Date, (i) but in no event for longer than seven days, in order that the required changes, if any domestic or international event or act or occurrence has materially disrupted, any, in the Registration Statement, in the Time of Sale Prospectus, in the Prospectus or in any other documents or arrangements may be effected. If, on an Option Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase Additional Shares and the Representative's opinion will in aggregate number of Additional Shares with respect to which such default occurs is more than 10% of the immediate future materially disrupt, general securities markets in aggregate number of Additional Shares to be purchased on such Option Closing Date, the United States; or (ii) if trading on the NYSE, the NYSE American, the Nasdaq Global Select Market, the Nasdaq Global Market, or the Nasdaq Capital Market or quoted on the over the counter market non-defaulting Underwriters shall have been suspended, or minimum or maximum prices for trading shall have been fixed, or maximum ranges for prices for securities shall have been fixed, or maximum ranges for prices for securities shall have been required by FINRA or by order of the Commission or any other government authority having jurisdiction, or (iii) if the United States shall have become involved in a new war or an increase in existing major hostilities, or (iv) if a banking moratorium has been declared by a New York State or Federal authority, or (v) if a moratorium on foreign exchange trading has been declared which materially adversely impacts the United States securities market, or (vi) if the Company shall have sustained a material loss by fire, flood, accident, hurricane, earthquake, theft, sabotage or other calamity or malicious act which, whether or not such loss shall have been insured, will, in the Representative's sole opinion, make it inadvisable option to proceed with the delivery of the Units, or (vii) if the Company is in material breach of any of its representations, warranties or covenants hereunder, or (viii) if the Representative shall have become aware after the date hereof of such a material adverse change in the conditions of the Company, or such adverse material change in general market conditions, including without limitation as a result of terrorist activities after the date hereof, as in the Representative's sole judgment would make it impracticable to proceed with the offering, sale and/or delivery of the Units or to enforce contracts made by the Underwriters for the sale of the Public Securities. 9.3 Expenses. If this Agreement shall be terminated pursuant to Section 6 hereof, the Company shall not then be under any liability to any Underwriter; but, if for any other reason, any Units are not delivered by or on behalf of the Company as provided herein or the Underwriters decline (i) terminate their obligation hereunder to purchase the Units for any reason permitted Additional Shares to be sold on such Option Closing Date or (ii) purchase not less than the number of Additional Shares that such non-defaulting Underwriters would have been obligated to purchase in the absence of such default. Any action taken under this Agreement, within the time specified herein or paragraph shall not relieve any extensions thereof pursuant to the terms herein, (i) the obligations defaulting Underwriter from liability in respect of the Company to pay the out any default of pocket accountable expenses related to the transactions contemplated herein shall be governed by Section 3.10 hereof, and (ii) the Company shall reimburse the Representative for any reasonable and accountable costs and expenses incurred in connection with enforcing any provisions of such Underwriter under this Agreement. 9.4 Indemnification. Notwithstanding any contrary provision contained in this Agreement, any election hereunder or any termination of this Agreement, and whether or not this Agreement is otherwise carried out, the provisions of Section 5 shall not be in any way affected by such election or termination or failure to carry out the terms of this Agreement or any part hereof. View More
Found in EGAIN Corp contract
Representations and Agreements to Survive Delivery. Except as the context otherwise requires, all representations, warranties and agreements contained in this Agreement shall be deemed to be representations, warranties and agreements as of the Closing Date or the Option Closing Date, if any, and such All representations, warranties and agreements of the Company herein or in certificates delivered pursuant hereto, and the agreements of the several Underwriters and the Company, including the indemnity agreements Company contained in Section 5 6 her...eof, shall remain operative and in full force and effect regardless of any investigation made by or on behalf of any Underwriter or any controlling person thereof, or the Underwriters, the Company, Company or any of its officers, directors or controlling persons, and shall survive delivery of, and payment for, the Securities to and by the Underwriters hereunder and any termination of this Agreement Agreement. 29 8. Substitution of Underwriters. (a) Obligation to Purchase Under Certain Circumstances. If any Underwriter or Underwriters shall fail to take up and pay for the issuance amount of Firm Shares agreed by such Underwriter or Underwriters to be purchased hereunder, upon tender of such Firm Shares in accordance with the terms hereof and delivery so long as the amount of Firm Shares not purchased does not aggregate more than 10% of the Public Securities total amount of Firm Shares set forth in Schedule I hereto, the remaining Underwriters shall be obligated to take up and pay for (in proportion to their respective underwriting obligations hereunder as set forth in Schedule I hereto except as may otherwise be determined by you) the Firm Shares that the withdrawing or defaulting Underwriters until agreed but failed to purchase. (b) Termination Under Certain Circumstances. If any Underwriter or Underwriters shall fail to take up and pay for the earlier amount of Firm Shares agreed by such Underwriter or Underwriters to be purchased hereunder, upon tender of such Firm Shares in accordance with the terms hereof if the amount of Firm Shares not purchased aggregates to more than 10% of the expiration total amount of any applicable statute of limitations Firm Shares set forth in Schedule I hereto, and arrangements satisfactory to you for the seventh (7th) anniversary of the later of the Closing Date or the Option Closing Date, if any, at which time the representations, warranties and agreements shall terminate and be of no further force and effect. 40 9. Effective Date of This Agreement and Termination Thereof. 9.1 Effective Date. This Agreement shall become effective on the Effective Date at the time the Registration Statement is declared effective by the Commission. 9.2 Termination. The Representative shall have the right to terminate this Agreement at any time prior to the Closing Date, (i) if any domestic or international event or act or occurrence has materially disrupted, or in the Representative's opinion will in the immediate future materially disrupt, general securities markets in the United States; or (ii) if trading on the NYSE, the NYSE American, the Nasdaq Global Select Market, the Nasdaq Global Market, or the Nasdaq Capital Market or quoted on the over the counter market shall have been suspended, or minimum or maximum prices for trading shall have been fixed, or maximum ranges for prices for securities shall have been fixed, or maximum ranges for prices for securities shall have been required by FINRA or by order of the Commission or any other government authority having jurisdiction, or (iii) if the United States shall have become involved in a new war or an increase in existing major hostilities, or (iv) if a banking moratorium has been declared by a New York State or Federal authority, or (v) if a moratorium on foreign exchange trading has been declared which materially adversely impacts the United States securities market, or (vi) if the Company shall have sustained a material loss by fire, flood, accident, hurricane, earthquake, theft, sabotage or other calamity or malicious act which, whether or not such loss shall have been insured, will, in the Representative's sole opinion, make it inadvisable to proceed with the delivery of the Units, or (vii) if the Company is in material breach of any of its representations, warranties or covenants hereunder, or (viii) if the Representative shall have become aware after the date hereof purchase of such a material adverse change in the conditions of the Company, or such adverse material change in general market conditions, including without limitation as a result of terrorist activities after the date hereof, as in the Representative's sole judgment would make it impracticable to proceed with the offering, sale and/or delivery of the Units or to enforce contracts Firm Shares by other persons are not made by the Underwriters for the sale of the Public Securities. 9.3 Expenses. If within 36 hours thereafter, this Agreement shall be terminated pursuant to Section 6 hereof, terminate. In the event of any such termination the Company shall not then be under any liability to any Underwriter; but, if Underwriter (except to the extent provided in Section 4(vii) and Section 6 hereof) nor shall any Underwriter (other than an Underwriter who shall have failed, other than for any other reason, any Units are not delivered by or on behalf of the Company as provided herein or the Underwriters decline to purchase the Units for any some reason permitted under this Agreement, within to purchase the time specified herein or amount of Firm Shares agreed by such Underwriter to be purchased hereunder) be under any extensions thereof pursuant liability to the terms herein, (i) the obligations of the Company to pay the out of pocket accountable expenses related (except to the transactions contemplated herein shall extent provided in Section 6 hereof). (c) Postponement of Closing. If Firm Shares to which a default relates are to be governed purchased by Section 3.10 hereof, the non-defaulting Underwriters or by any other party or parties, the Representative and (ii) the Company shall reimburse each have the Representative right to postpone the First Closing Date for any reasonable and accountable costs and expenses incurred not more than seven business days in connection with enforcing any provisions order that the necessary changes in the Registration Statement, in the Time of this Agreement. 9.4 Indemnification. Notwithstanding any contrary provision contained Sale Disclosure Package, in this Agreement, any election hereunder the Prospectus or any termination of this Agreement, and whether or not this Agreement is otherwise carried out, the provisions of Section 5 shall not be in any way affected by other documents, as well as any other arrangements, may be effected. As used herein, the term "Underwriter" includes any person substituted for an Underwriter under this Section 8. (d) No Relief from Liability. No action taken pursuant to this Section 8 shall relieve any defaulting Underwriter from liability, if any, in respect of such election or termination or failure to carry out the terms of this Agreement or any part hereof. default. View More
Found in DULUTH HOLDINGS INC. contract
Representations and Agreements to Survive Delivery. Except as the context otherwise requires, all All representations, warranties and agreements contained in this Agreement shall be deemed to be representations, warranties and agreements as of the Closing Date or the Option Closing Date, if any, and such representations, warranties warranties, and agreements of the Company herein or in certificates delivered pursuant hereto, and the agreements of the several Underwriters and the Company, including the indemnity agreements Company contained in Sec...tion 5 8 hereof, shall remain operative and in full force and effect regardless of any investigation made by or on behalf of any Underwriter or any controlling person thereof, or the Underwriters, the Company, Company or any of its officers, directors, or controlling persons, and shall survive delivery of, and payment for, the Securities to and by the Underwriters hereunder and any termination of this Agreement Agreement. 32 10. Substitution of Underwriters. (a) Obligation to Purchase Under Certain Circumstances. If any Underwriter or Underwriters shall fail to take up and pay for the issuance amount of Firm Shares agreed by such Underwriter or Underwriters to be purchased hereunder, upon tender of such Firm Shares in accordance with the terms hereof, and delivery the amount of Firm Shares not purchased does not aggregate more than 10% of the Public Securities total amount of Firm Shares set forth in Schedule I hereto, the remaining Underwriters shall be obligated to take up and pay for (in proportion to their respective underwriting obligations hereunder as set forth in Schedule I hereto except as may otherwise be determined by you) the Firm Shares that the withdrawing or defaulting Underwriters until agreed but failed to purchase. (b) Termination Under Certain Circumstances. If any Underwriter or Underwriters shall fail to take up and pay for the earlier amount of Firm Shares agreed by such Underwriter or Underwriters to be purchased hereunder, upon tender of such Firm Shares in accordance with the terms hereof, and the amount of Firm Shares not purchased aggregates more than 10% of the expiration total amount of any applicable statute of limitations Firm Shares set forth in Schedule I hereto, and arrangements satisfactory to you for the seventh (7th) anniversary of the later of the Closing Date or the Option Closing Date, if any, at which time the representations, warranties and agreements shall terminate and be of no further force and effect. 40 9. Effective Date of This Agreement and Termination Thereof. 9.1 Effective Date. This Agreement shall become effective on the Effective Date at the time the Registration Statement is declared effective by the Commission. 9.2 Termination. The Representative shall have the right to terminate this Agreement at any time prior to the Closing Date, (i) if any domestic or international event or act or occurrence has materially disrupted, or in the Representative's opinion will in the immediate future materially disrupt, general securities markets in the United States; or (ii) if trading on the NYSE, the NYSE American, the Nasdaq Global Select Market, the Nasdaq Global Market, or the Nasdaq Capital Market or quoted on the over the counter market shall have been suspended, or minimum or maximum prices for trading shall have been fixed, or maximum ranges for prices for securities shall have been fixed, or maximum ranges for prices for securities shall have been required by FINRA or by order of the Commission or any other government authority having jurisdiction, or (iii) if the United States shall have become involved in a new war or an increase in existing major hostilities, or (iv) if a banking moratorium has been declared by a New York State or Federal authority, or (v) if a moratorium on foreign exchange trading has been declared which materially adversely impacts the United States securities market, or (vi) if the Company shall have sustained a material loss by fire, flood, accident, hurricane, earthquake, theft, sabotage or other calamity or malicious act which, whether or not such loss shall have been insured, will, in the Representative's sole opinion, make it inadvisable to proceed with the delivery of the Units, or (vii) if the Company is in material breach of any of its representations, warranties or covenants hereunder, or (viii) if the Representative shall have become aware after the date hereof purchase of such a material adverse change in the conditions of the Company, or such adverse material change in general market conditions, including without limitation as a result of terrorist activities after the date hereof, as in the Representative's sole judgment would make it impracticable to proceed with the offering, sale and/or delivery of the Units or to enforce contracts Firm Shares by other persons are not made by the Underwriters for the sale of the Public Securities. 9.3 Expenses. If within 36 hours thereafter, this Agreement shall be terminated pursuant to Section 6 hereof, terminate. In the event of any such termination the Company shall not then be under any liability to any Underwriter; but, if Underwriter (except to the extent provided in Section 6(a)(vii) and Section 8 hereof) nor shall any Underwriter (other than an Underwriter who shall have failed, otherwise than for any other reason, any Units are not delivered by or on behalf of the Company as provided herein or the Underwriters decline to purchase the Units for any some reason permitted under this Agreement, within to purchase the time specified herein or amount of Firm Shares agreed by such Underwriter to be purchased hereunder) be under any extensions thereof pursuant liability to the terms herein, (i) the obligations of the Company to pay the out of pocket accountable expenses related (except to the transactions contemplated herein shall extent provided in Section 8 hereof). (c) Postponement of Closing. If Firm Shares to which a default relates are to be governed purchased by Section 3.10 hereof, and (ii) the non-defaulting Underwriters or by any other party or parties, the Representatives or the Company shall reimburse have the Representative right to postpone the First Closing Date for any reasonable and accountable costs and expenses incurred not more than seven business days in connection with enforcing any provisions order that the necessary changes in the Registration Statement, in the Time of this Agreement. 9.4 Indemnification. Notwithstanding any contrary provision contained Sale Disclosure Package, in this Agreement, any election hereunder the Prospectus or any termination of this Agreement, and whether or not this Agreement is otherwise carried out, the provisions of Section 5 shall not be in any way affected by other documents, as well as any other arrangements, may be effected. As used herein, the term "Underwriter" includes any person substituted for an Underwriter under this Section 10. (d) No Relief from Liability. No action taken pursuant to this Section shall relieve any defaulting Underwriter from liability, if any, in respect of such election or termination or failure to carry out the terms of this Agreement or any part hereof. default. View More
Found in TCP International Holdings Ltd. contract
Representations and Agreements to Survive Delivery. Except as the context otherwise requires, all All representations, warranties and agreements contained in this Agreement shall be deemed to be representations, warranties and agreements as of the Closing Date or the Option Closing Date, if any, and such representations, warranties warranties, and agreements of the Company herein or in certificates delivered pursuant hereto, including but not limited to the agreements of the several Underwriters and the Company, including the indemnity agreements... Company contained in Section 5 6 hereof, shall remain operative and in full force and effect regardless of any investigation made by or on behalf of any Underwriter or any controlling person thereof, or the Underwriters, the Company, Company or any of its officers, directors, or controlling persons, and shall survive delivery of, and payment for, the Securities to and by the Underwriters hereunder and any termination of this Agreement Agreement. -30- 8. Substitution of Underwriters. (a) Obligation to Purchase Under Certain Circumstances. If any Underwriter or Underwriters shall fail to take up and pay for the issuance amount of Firm Shares agreed by such Underwriter or Underwriters to be purchased hereunder, upon tender of such Firm Shares in accordance with the terms hereof, and delivery the amount of Firm Shares not purchased does not aggregate more than 10% of the Public Securities total amount of Firm Shares set forth in Schedule II hereto, the remaining Underwriters shall be obligated to take up and pay for (in proportion to their respective underwriting obligations hereunder as set forth in Schedule II hereto except as may otherwise be determined by you) the Firm Shares that the withdrawing or defaulting Underwriters until agreed but failed to purchase. (b) Termination Under Certain Circumstances. If any Underwriter or Underwriters shall fail to take up and pay for the earlier amount of Firm Shares agreed by such Underwriter or Underwriters to be purchased hereunder, upon tender of such Firm Shares in accordance with the terms hereof, and the amount of Firm Shares not purchased aggregates more than 10% of the expiration total amount of any applicable statute of limitations Firm Shares set forth in Schedule II hereto, and arrangements satisfactory to you for the seventh (7th) anniversary of the later of the Closing Date or the Option Closing Date, if any, at which time the representations, warranties and agreements shall terminate and be of no further force and effect. 40 9. Effective Date of This Agreement and Termination Thereof. 9.1 Effective Date. This Agreement shall become effective on the Effective Date at the time the Registration Statement is declared effective by the Commission. 9.2 Termination. The Representative shall have the right to terminate this Agreement at any time prior to the Closing Date, (i) if any domestic or international event or act or occurrence has materially disrupted, or in the Representative's opinion will in the immediate future materially disrupt, general securities markets in the United States; or (ii) if trading on the NYSE, the NYSE American, the Nasdaq Global Select Market, the Nasdaq Global Market, or the Nasdaq Capital Market or quoted on the over the counter market shall have been suspended, or minimum or maximum prices for trading shall have been fixed, or maximum ranges for prices for securities shall have been fixed, or maximum ranges for prices for securities shall have been required by FINRA or by order of the Commission or any other government authority having jurisdiction, or (iii) if the United States shall have become involved in a new war or an increase in existing major hostilities, or (iv) if a banking moratorium has been declared by a New York State or Federal authority, or (v) if a moratorium on foreign exchange trading has been declared which materially adversely impacts the United States securities market, or (vi) if the Company shall have sustained a material loss by fire, flood, accident, hurricane, earthquake, theft, sabotage or other calamity or malicious act which, whether or not such loss shall have been insured, will, in the Representative's sole opinion, make it inadvisable to proceed with the delivery of the Units, or (vii) if the Company is in material breach of any of its representations, warranties or covenants hereunder, or (viii) if the Representative shall have become aware after the date hereof purchase of such a material adverse change in the conditions of the Company, or such adverse material change in general market conditions, including without limitation as a result of terrorist activities after the date hereof, as in the Representative's sole judgment would make it impracticable to proceed with the offering, sale and/or delivery of the Units or to enforce contracts Firm Shares by other persons are not made by the Underwriters for the sale of the Public Securities. 9.3 Expenses. If within 36 hours thereafter, this Agreement shall be terminated pursuant to Section 6 hereof, terminate. In the event of any such termination neither the Company nor any Selling Stockholder shall not then be under any liability to any Underwriter; but, if Underwriter (except to the extent provided in Section 4(a)(vii), Section 4(b)(i), Section 4(b)(ii) and Section 6 hereof) nor shall any Underwriter (other than an Underwriter who shall have failed, otherwise than for any other reason, any Units are not delivered by or on behalf of the Company as provided herein or the Underwriters decline to purchase the Units for any some reason permitted under this Agreement, within to purchase the time specified herein or amount of Firm Shares agreed by such Underwriter to be purchased hereunder) be under any extensions thereof pursuant liability to the terms herein, (i) Company or the obligations of the Company to pay the out of pocket accountable expenses related Selling Stockholders (except to the transactions contemplated herein shall extent provided in Section 6 hereof). (c) Postponement of Closing. If Firm Shares to which a default relates are to be governed purchased by Section 3.10 hereof, and (ii) the non-defaulting Underwriters or by any other party or parties, the Representative or the Company shall reimburse have the Representative right to postpone the First Closing Date for any reasonable and accountable costs and expenses incurred not more than seven business days in connection with enforcing any provisions order that the necessary changes in the Registration Statement, the Time of this Agreement. 9.4 Indemnification. Notwithstanding any contrary provision contained in this Agreement, any election hereunder Sale Disclosure Package, the Prospectus or any termination of this Agreement, and whether or not this Agreement is otherwise carried out, the provisions of Section 5 shall not be in any way affected by other documents, as well as any other arrangements, may be effected. As used herein, the term "Underwriter" includes any person substituted for an Underwriter under this Section 8. (d) No Relief from Liability. No action taken pursuant to this Section shall relieve any defaulting Underwriter from liability, if any, in respect of such election or termination or failure to carry out the terms of this Agreement or any part hereof. default. View More
Found in ROCKWELL MEDICAL, INC. contract
Representations and Agreements to Survive Delivery. Except as the context otherwise requires, all All representations, warranties and agreements contained in this Agreement shall be deemed to be representations, warranties and agreements as of the Closing Date or the Option Closing Date, if any, and such representations, warranties warranties, and agreements of the Underwriters and Company herein or in certificates delivered pursuant hereto, including but not limited to the Company, including agreements of the indemnity agreements several Underwr...iters, the Company contained in Section 5 6 hereof, shall remain operative and in full force and effect regardless of any investigation made by or on behalf of any Underwriter or any controlling person thereof, or the Underwriters, the Company, Company or any of its officers, directors, or controlling persons, and shall survive delivery of, and payment for, the Securities to and by the Underwriters hereunder and any termination of this Agreement Agreement. -31- 8. Substitution of Underwriters. (a) Obligation to Purchase Under Certain Circumstances. If any Underwriter or Underwriters shall fail to take up and pay for the issuance amount of Firm Shares agreed by such Underwriter or Underwriters to be purchased hereunder, upon tender of such Firm Shares in accordance with the terms hereof, and delivery the amount of Firm Shares not purchased does not aggregate more than 10% of the Public Securities total amount of Firm Shares set forth in Schedule I hereto, the remaining Underwriters shall be obligated to take up and pay for (in proportion to their respective underwriting obligations hereunder as set forth in Schedule I hereto except as may otherwise be determined by you) the Firm Shares that the withdrawing or defaulting Underwriters until agreed but failed to purchase. (b) Termination Under Certain Circumstances. If any Underwriter or Underwriters shall fail to take up and pay for the earlier amount of Firm Shares agreed by such Underwriter or Underwriters to be purchased hereunder, upon tender of such Firm Shares in accordance with the terms hereof, and the amount of Firm Shares not purchased aggregates more than 10% of the expiration total amount of any applicable statute of limitations Firm Shares set forth in Schedule I hereto, and arrangements satisfactory to you for the seventh (7th) anniversary of the later of the Closing Date or the Option Closing Date, if any, at which time the representations, warranties and agreements shall terminate and be of no further force and effect. 40 9. Effective Date of This Agreement and Termination Thereof. 9.1 Effective Date. This Agreement shall become effective on the Effective Date at the time the Registration Statement is declared effective by the Commission. 9.2 Termination. The Representative shall have the right to terminate this Agreement at any time prior to the Closing Date, (i) if any domestic or international event or act or occurrence has materially disrupted, or in the Representative's opinion will in the immediate future materially disrupt, general securities markets in the United States; or (ii) if trading on the NYSE, the NYSE American, the Nasdaq Global Select Market, the Nasdaq Global Market, or the Nasdaq Capital Market or quoted on the over the counter market shall have been suspended, or minimum or maximum prices for trading shall have been fixed, or maximum ranges for prices for securities shall have been fixed, or maximum ranges for prices for securities shall have been required by FINRA or by order of the Commission or any other government authority having jurisdiction, or (iii) if the United States shall have become involved in a new war or an increase in existing major hostilities, or (iv) if a banking moratorium has been declared by a New York State or Federal authority, or (v) if a moratorium on foreign exchange trading has been declared which materially adversely impacts the United States securities market, or (vi) if the Company shall have sustained a material loss by fire, flood, accident, hurricane, earthquake, theft, sabotage or other calamity or malicious act which, whether or not such loss shall have been insured, will, in the Representative's sole opinion, make it inadvisable to proceed with the delivery of the Units, or (vii) if the Company is in material breach of any of its representations, warranties or covenants hereunder, or (viii) if the Representative shall have become aware after the date hereof purchase of such a material adverse change in the conditions of the Company, or such adverse material change in general market conditions, including without limitation as a result of terrorist activities after the date hereof, as in the Representative's sole judgment would make it impracticable to proceed with the offering, sale and/or delivery of the Units or to enforce contracts Firm Shares by other persons are not made by the Underwriters for the sale of the Public Securities. 9.3 Expenses. If within 36 hours thereafter, this Agreement shall be terminated pursuant to Section 6 hereof, terminate. In the event of any such termination the Company shall not then be under any liability to any Underwriter; but, if Underwriter (except to the extent provided in Section 4(a)(vii), Section 4(b)(i), Section 4(b)(ii) and Section 6 hereof) nor shall any Underwriter (other than an Underwriter who shall have failed, otherwise than for any other reason, any Units are not delivered by or on behalf of the Company as provided herein or the Underwriters decline to purchase the Units for any some reason permitted under this Agreement, within to purchase the time specified herein or amount of Firm Shares agreed by such Underwriter to be purchased hereunder) be under any extensions thereof pursuant liability to the terms herein, (i) the obligations of the Company to pay the out of pocket accountable expenses related (except to the transactions contemplated herein shall extent provided in Section 6 hereof). (c) Postponement of Closing. If Firm Shares to which a default relates are to be governed purchased by Section 3.10 hereof, and (ii) the non-defaulting Underwriters or by any other party or parties, the Representatives or the Company shall reimburse have the Representative right to postpone the First Closing Date for any reasonable and accountable costs and expenses incurred not more than seven business days in connection with enforcing any provisions order that the necessary changes in the Registration Statement, in the Time of this Agreement. 9.4 Indemnification. Notwithstanding any contrary provision contained Sale Disclosure Package, in this Agreement, any election hereunder the Prospectus or any termination of this Agreement, and whether or not this Agreement is otherwise carried out, the provisions of Section 5 shall not be in any way affected by other documents, as well as any other arrangements, may be effected. As used herein, the term "Underwriter" includes any person substituted for an Underwriter under this Section 8. (d) No Relief from Liability. No action taken pursuant to this Section shall relieve any defaulting Underwriter from liability, if any, in respect of such election or termination or failure to carry out the terms of this Agreement or any part hereof. default. View More
Found in Neuronetics, Inc. contract
Representations and Agreements to Survive Delivery. Except as the context otherwise requires, all All representations, warranties and agreements contained in this Agreement shall be deemed to be representations, warranties and agreements as of the Closing Date or the Option Closing Date, if any, and such representations, warranties warranties, and agreements of the Company herein or in certificates delivered pursuant hereto, and the agreements of the several Underwriters and the Company, including the indemnity agreements Company contained in Sec...tion 5 6 hereof, shall remain operative and in full force and effect regardless of any investigation made by or on behalf of any Underwriter or any controlling person thereof, or the Underwriters, the Company, Company or any of its officers, directors, or controlling persons, and shall survive delivery of, and payment for, the Securities to and by the Underwriters hereunder and any termination of this Agreement Agreement. 32 8. Substitution of Underwriters. (a) Obligation to Purchase Under Certain Circumstances. If any Underwriter or Underwriters shall fail to take up and pay for the issuance amount of Firm Shares agreed by such Underwriter or Underwriters to be purchased hereunder, upon tender of such Firm Shares in accordance with the terms hereof, and delivery the amount of Firm Shares not purchased does not aggregate more than 10% of the Public Securities total amount of Firm Shares set forth in Schedule I hereto, the remaining Underwriters shall be obligated to take up and pay for (in proportion to their respective underwriting obligations hereunder as set forth in Schedule I hereto except as may otherwise be determined by you) the Firm Shares that the withdrawing or defaulting Underwriters until agreed but failed to purchase. (b) Termination Under Certain Circumstances. If any Underwriter or Underwriters shall fail to take up and pay for the earlier amount of Firm Shares agreed by such Underwriter or Underwriters to be purchased hereunder, upon tender of such Firm Shares in accordance with the terms hereof, and the amount of Firm Shares not purchased aggregates more than 10% of the expiration total amount of any applicable statute of limitations Firm Shares set forth in Schedule I hereto, and arrangements satisfactory to you for the seventh (7th) anniversary of the later of the Closing Date or the Option Closing Date, if any, at which time the representations, warranties and agreements shall terminate and be of no further force and effect. 40 9. Effective Date of This Agreement and Termination Thereof. 9.1 Effective Date. This Agreement shall become effective on the Effective Date at the time the Registration Statement is declared effective by the Commission. 9.2 Termination. The Representative shall have the right to terminate this Agreement at any time prior to the Closing Date, (i) if any domestic or international event or act or occurrence has materially disrupted, or in the Representative's opinion will in the immediate future materially disrupt, general securities markets in the United States; or (ii) if trading on the NYSE, the NYSE American, the Nasdaq Global Select Market, the Nasdaq Global Market, or the Nasdaq Capital Market or quoted on the over the counter market shall have been suspended, or minimum or maximum prices for trading shall have been fixed, or maximum ranges for prices for securities shall have been fixed, or maximum ranges for prices for securities shall have been required by FINRA or by order of the Commission or any other government authority having jurisdiction, or (iii) if the United States shall have become involved in a new war or an increase in existing major hostilities, or (iv) if a banking moratorium has been declared by a New York State or Federal authority, or (v) if a moratorium on foreign exchange trading has been declared which materially adversely impacts the United States securities market, or (vi) if the Company shall have sustained a material loss by fire, flood, accident, hurricane, earthquake, theft, sabotage or other calamity or malicious act which, whether or not such loss shall have been insured, will, in the Representative's sole opinion, make it inadvisable to proceed with the delivery of the Units, or (vii) if the Company is in material breach of any of its representations, warranties or covenants hereunder, or (viii) if the Representative shall have become aware after the date hereof purchase of such a material adverse change in the conditions of the Company, or such adverse material change in general market conditions, including without limitation as a result of terrorist activities after the date hereof, as in the Representative's sole judgment would make it impracticable to proceed with the offering, sale and/or delivery of the Units or to enforce contracts Firm Shares by other persons are not made by the Underwriters for the sale of the Public Securities. 9.3 Expenses. If within 36 hours thereafter, this Agreement shall be terminated pursuant to Section 6 hereof, terminate. In the event of any such termination the Company shall not then be under any liability to any Underwriter; but, if Underwriter (except to the extent provided in Section 4(a)(vii) and Section 6 hereof) nor shall any Underwriter (other than an Underwriter who shall have failed, otherwise than for any other reason, any Units are not delivered by or on behalf of the Company as provided herein or the Underwriters decline to purchase the Units for any some reason permitted under this Agreement, within to purchase the time specified herein or amount of Firm Shares agreed by such Underwriter to be purchased hereunder) be under any extensions thereof pursuant liability to the terms herein, (i) the obligations of the Company to pay the out of pocket accountable expenses related (except to the transactions contemplated herein shall extent provided in Section 6 hereof). (c) Postponement of Closing. If Firm Shares to which a default relates are to be governed purchased by Section 3.10 hereof, and (ii) the non-defaulting Underwriters or by any other party or parties, the Representative or the Company shall reimburse have the Representative right to postpone the First Closing Date for any reasonable and accountable costs and expenses incurred not more than seven business days in connection with enforcing any provisions order that the necessary changes in the Registration Statement, in the Time of this Agreement. 9.4 Indemnification. Notwithstanding any contrary provision contained Sale Disclosure Package, in this Agreement, any election hereunder the Prospectus or any termination of this Agreement, and whether or not this Agreement is otherwise carried out, the provisions of Section 5 shall not be in any way affected by other documents, as well as any other arrangements, may be effected. As used herein, the term "Underwriter" includes any person substituted for an Underwriter under this Section 8. (d) No Relief from Liability. No action taken pursuant to this Section shall relieve any defaulting Underwriter from liability, if any, in respect of such election or termination or failure to carry out the terms of this Agreement or any part hereof. default. View More
Found in AZIYO BIOLOGICS, INC. contract
Representations and Agreements to Survive Delivery. Except as the context otherwise requires, all All representations, warranties and agreements contained in this Agreement shall be deemed to be representations, warranties and agreements as of the Closing Date or the Option Closing Date, if any, and such representations, warranties warranties, and agreements of the Company herein or in certificates delivered pursuant hereto, including but not limited to the agreements of the several Underwriters and the Company, including the indemnity agreements... Company contained in Section 5 6 hereof, shall remain operative and in full force and effect regardless of any investigation made by or on behalf of any Underwriter or any controlling person thereof, or the Underwriters, the Company, Company or any of its officers, directors, or controlling persons, and shall survive delivery of, and payment for, the Shares to and by the Underwriters hereunder and any termination of this Agreement Agreement. -31- 8. Substitution of Underwriters. (a) Obligation to Purchase Under Certain Circumstances. If any Underwriter or Underwriters shall fail to take up and pay for the issuance amount of Firm Shares agreed by such Underwriter or Underwriters to be purchased hereunder, upon tender of such Firm Shares in accordance with the terms hereof, and delivery the amount of Firm Shares not purchased does not aggregate more than 10% of the Public Securities total amount of Firm Shares set forth in Schedule I hereto, the remaining Underwriters shall be obligated to take up and pay for (in proportion to their respective underwriting obligations hereunder as set forth in Schedule I hereto except as may otherwise be determined by you) the Firm Shares that the withdrawing or defaulting Underwriters until agreed but failed to purchase. (b) Termination Under Certain Circumstances. If any Underwriter or Underwriters shall fail to take up and pay for the earlier amount of Firm Shares agreed by such Underwriter or Underwriters to be purchased hereunder, upon tender of such Firm Shares in accordance with the terms hereof, and the amount of Firm Shares not purchased aggregates more than 10% of the expiration total amount of any applicable statute of limitations Firm Shares set forth in Schedule I hereto, and arrangements satisfactory to you for the seventh (7th) anniversary of the later of the Closing Date or the Option Closing Date, if any, at which time the representations, warranties and agreements shall terminate and be of no further force and effect. 40 9. Effective Date of This Agreement and Termination Thereof. 9.1 Effective Date. This Agreement shall become effective on the Effective Date at the time the Registration Statement is declared effective by the Commission. 9.2 Termination. The Representative shall have the right to terminate this Agreement at any time prior to the Closing Date, (i) if any domestic or international event or act or occurrence has materially disrupted, or in the Representative's opinion will in the immediate future materially disrupt, general securities markets in the United States; or (ii) if trading on the NYSE, the NYSE American, the Nasdaq Global Select Market, the Nasdaq Global Market, or the Nasdaq Capital Market or quoted on the over the counter market shall have been suspended, or minimum or maximum prices for trading shall have been fixed, or maximum ranges for prices for securities shall have been fixed, or maximum ranges for prices for securities shall have been required by FINRA or by order of the Commission or any other government authority having jurisdiction, or (iii) if the United States shall have become involved in a new war or an increase in existing major hostilities, or (iv) if a banking moratorium has been declared by a New York State or Federal authority, or (v) if a moratorium on foreign exchange trading has been declared which materially adversely impacts the United States securities market, or (vi) if the Company shall have sustained a material loss by fire, flood, accident, hurricane, earthquake, theft, sabotage or other calamity or malicious act which, whether or not such loss shall have been insured, will, in the Representative's sole opinion, make it inadvisable to proceed with the delivery of the Units, or (vii) if the Company is in material breach of any of its representations, warranties or covenants hereunder, or (viii) if the Representative shall have become aware after the date hereof purchase of such a material adverse change in the conditions of the Company, or such adverse material change in general market conditions, including without limitation as a result of terrorist activities after the date hereof, as in the Representative's sole judgment would make it impracticable to proceed with the offering, sale and/or delivery of the Units or to enforce contracts Firm Shares by other persons are not made by the Underwriters for the sale of the Public Securities. 9.3 Expenses. If within 36 hours thereafter, this Agreement shall be terminated pursuant to Section 6 hereof, terminate automatically. In the event of any such termination, the Company shall not then be under any liability to any Underwriter; but, if Underwriter (except to the extent provided in Section 4(g) and Section 6 hereof), nor shall any Underwriter (other than an Underwriter who shall have failed, otherwise than for any other reason, any Units are not delivered by or on behalf of the Company as provided herein or the Underwriters decline to purchase the Units for any some reason permitted under this Agreement, within to purchase the time specified herein or amount of Firm Shares agreed by such Underwriter to be purchased hereunder) be under any extensions thereof pursuant liability to the terms herein, (i) the obligations of the Company to pay the out of pocket accountable expenses related (except to the transactions contemplated herein shall extent provided in Section 6 hereof). (c) Postponement of Closing. If Firm Shares to which a default relates are to be governed purchased by Section 3.10 hereof, and (ii) the non-defaulting Underwriters or by any other party or parties, the Representative or the Company shall reimburse have the Representative right to postpone the First Closing Date for any reasonable and accountable costs and expenses incurred not more than seven business days in connection with enforcing any provisions order that the necessary changes in the Registration Statement, in the Time of this Agreement. 9.4 Indemnification. Notwithstanding any contrary provision contained Sale Disclosure Package, in this Agreement, any election hereunder the Prospectus or any termination of this Agreement, and whether or not this Agreement is otherwise carried out, the provisions of Section 5 shall not be in any way affected by other documents, as well as any other arrangements, may be effected. As used herein, the term "Underwriter" includes any person substituted for an Underwriter under this Section 8. (d) No Relief from Liability. No action taken pursuant to this Section 8 shall relieve any defaulting Underwriter from liability, if any, in respect of such election or termination or failure to carry out the terms of this Agreement or any part hereof. default. View More
Found in CATALYST BIOSCIENCES, INC. contract
Representations and Agreements to Survive Delivery. Except as the context otherwise requires, all All representations, warranties and agreements contained in this Agreement shall be deemed to be representations, warranties and agreements as of the Closing Date or the Option Closing Date, if any, and such representations, warranties warranties, and agreements of the Company herein or in certificates delivered pursuant hereto, and the agreements of the several Underwriters and the Company, including the indemnity agreements Company contained in Sec...tion 5 6 hereof, shall remain operative and in full force and effect regardless of any investigation made by or on behalf of any Underwriter or any controlling person thereof, or the Underwriters, the Company, Company or any of its officers, directors, or controlling persons or any controlling person thereof, and shall survive delivery of, and payment for, the Securities to and by the Underwriters hereunder and any termination of this Agreement. 29 8.Substitution of Underwriters. (a) Obligation to Purchase Under Certain Circumstances. If any Underwriter or Underwriters shall fail to take up and pay for the amount of Firm Shares agreed by such Underwriter or Underwriters to be purchased hereunder, upon tender of such Firm Shares in accordance with the terms hereof, and the amount of Firm Shares not purchased does not aggregate to more than 10% of the total amount of Firm Shares set forth in Schedule I hereto, the remaining Underwriters shall be obligated to take up and pay for (in proportion to their respective underwriting obligations hereunder as set forth in Schedule I hereto except as may otherwise be determined by you) the Firm Shares that the withdrawing or defaulting Underwriters agreed but failed to purchase. (b) Termination Under Certain Circumstances. If any Underwriter or Underwriters shall fail to take up and pay for the amount of Firm Shares agreed by such Underwriter or Underwriters to be purchased hereunder, upon tender of such Firm Shares in accordance with the terms hereof, and the amount of Firm Shares not purchased aggregates to more than 10% of the total amount of Firm Shares set forth in Schedule I hereto, and arrangements satisfactory to you for the purchase of such Firm Shares by other persons are not made within 36 hours thereafter, this Agreement shall terminate. In the event of any such termination, the Company shall not have any liability to any Underwriter (except to the extent provided in Sections 4(a)(vii) and 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 amount of Firm Shares agreed by such Underwriter to be purchased hereunder) be under any liability to the Company (except to the extent provided in Section 6 hereof). (c) Postponement of Closing. If Firm Shares to which a default relates are to be purchased by the non-defaulting Underwriters or by any other party or parties, the Representatives or the issuance and delivery of the Public Securities to the Underwriters until the earlier of the expiration of any applicable statute of limitations and the seventh (7th) anniversary of the later of the Closing Date or the Option Closing Date, if any, at which time the representations, warranties and agreements shall terminate and be of no further force and effect. 40 9. Effective Date of This Agreement and Termination Thereof. 9.1 Effective Date. This Agreement shall become effective on the Effective Date at the time the Registration Statement is declared effective by the Commission. 9.2 Termination. The Representative Company shall have the right to terminate this Agreement at any time prior to postpone the First Closing Date, (i) if any domestic or international event or act or occurrence has materially disrupted, or Date for not more than seven business days in order that the necessary changes in the Representative's opinion will in Registration Statement, the immediate future materially disrupt, general securities markets in Time of Sale Disclosure Package, the United States; or (ii) if trading on the NYSE, the NYSE American, the Nasdaq Global Select Market, the Nasdaq Global Market, or the Nasdaq Capital Market or quoted on the over the counter market shall have been suspended, or minimum or maximum prices for trading shall have been fixed, or maximum ranges for prices for securities shall have been fixed, or maximum ranges for prices for securities shall have been required by FINRA or by order of the Commission Prospectus or any other government authority having jurisdiction, or (iii) documents, as well as any other arrangements, may be effected. As used herein, the term "Underwriter" includes any person substituted for an Underwriter under this Section 8. (d) No Relief from Liability. No action taken pursuant to this Section 8 shall relieve any defaulting Underwriter from liability, if the United States shall have become involved any, in a new war or an increase in existing major hostilities, or (iv) if a banking moratorium has been declared by a New York State or Federal authority, or (v) if a moratorium on foreign exchange trading has been declared which materially adversely impacts the United States securities market, or (vi) if the Company shall have sustained a material loss by fire, flood, accident, hurricane, earthquake, theft, sabotage or other calamity or malicious act which, whether or not such loss shall have been insured, will, in the Representative's sole opinion, make it inadvisable to proceed with the delivery of the Units, or (vii) if the Company is in material breach of any of its representations, warranties or covenants hereunder, or (viii) if the Representative shall have become aware after the date hereof respect of such a material adverse change in the conditions of the Company, or such adverse material change in general market conditions, including without limitation as a result of terrorist activities after the date hereof, as in the Representative's sole judgment would make it impracticable to proceed with the offering, sale and/or delivery of the Units or to enforce contracts made by the Underwriters for the sale of the Public Securities. 9.3 Expenses. If this Agreement shall be terminated pursuant to Section 6 hereof, the Company shall not then be under any liability to any Underwriter; but, if for any other reason, any Units are not delivered by or on behalf of the Company as provided herein or the Underwriters decline to purchase the Units for any reason permitted under this Agreement, within the time specified herein or any extensions thereof pursuant to the terms herein, (i) the obligations of the Company to pay the out of pocket accountable expenses related to the transactions contemplated herein shall be governed by Section 3.10 hereof, and (ii) the Company shall reimburse the Representative for any reasonable and accountable costs and expenses incurred in connection with enforcing any provisions of this Agreement. 9.4 Indemnification. Notwithstanding any contrary provision contained in this Agreement, any election hereunder or any termination of this Agreement, and whether or not this Agreement is otherwise carried out, the provisions of Section 5 shall not be in any way affected by such election or termination or failure to carry out the terms of this Agreement or any part hereof. default. View More
Found in ORTHOPEDIATRICS CORP contract
Representations and Agreements to Survive Delivery. Except as the context otherwise requires, all All representations, warranties and agreements contained in this Agreement shall be deemed to be representations, warranties and agreements as of the Closing Date or the Option Closing Date, if any, and such representations, warranties warranties, and agreements of the Underwriters Company herein or in certificates delivered pursuant hereto, and the Company, including agreements of the indemnity agreements several Underwriters, the Company contained ...in Section 5 6 hereof, shall remain operative and in full force and effect regardless of any investigation made by or on behalf of any Underwriter or any controlling person thereof, or the Underwriters, the Company, Company or any of its officers, directors, or controlling persons, and shall survive delivery of, and payment for, the Securities to and by the Underwriters hereunder and any termination of this Agreement Agreement. 31 8. Substitution of Underwriters. (a) Obligation to Purchase Under Certain Circumstances. If any Underwriter or Underwriters shall fail to take up and pay for the issuance amount of Firm Shares agreed by such Underwriter or Underwriters to be purchased hereunder, upon tender of such Firm Shares in accordance with the terms hereof, and delivery the amount of Firm Shares not purchased does not aggregate more than 10% of the Public Securities total amount of Firm Shares set forth in Schedule I hereto, the remaining Underwriters shall be obligated to take up and pay for (in proportion to their respective underwriting obligations hereunder as set forth in Schedule I hereto except as may otherwise be determined by you) the Firm Shares that the withdrawing or defaulting Underwriters until agreed but failed to purchase. (b) Termination Under Certain Circumstances. If any Underwriter or Underwriters shall fail to take up and pay for the earlier amount of Firm Shares agreed by such Underwriter or Underwriters to be purchased hereunder, upon tender of such Firm Shares in accordance with the terms hereof, and the amount of Firm Shares not purchased aggregates more than 10% of the expiration total amount of Firm Shares set forth in Schedule I hereto, and arrangements satisfactory to you for the purchase of such Firm Shares by other persons are not made within 36 hours thereafter, this Agreement shall terminate. In the event of any applicable statute of limitations and the seventh (7th) anniversary of the later of the Closing Date or the Option Closing Date, if any, at which time the representations, warranties and agreements shall terminate and be of no further force and effect. 40 9. Effective Date of This Agreement and Termination Thereof. 9.1 Effective Date. This Agreement shall become effective on the Effective Date at the time the Registration Statement is declared effective by the Commission. 9.2 Termination. The Representative shall have the right to terminate this Agreement at any time prior to the Closing Date, (i) if any domestic or international event or act or occurrence has materially disrupted, or in the Representative's opinion will in the immediate future materially disrupt, general securities markets in the United States; or (ii) if trading on the NYSE, the NYSE American, the Nasdaq Global Select Market, the Nasdaq Global Market, or the Nasdaq Capital Market or quoted on the over the counter market shall have been suspended, or minimum or maximum prices for trading shall have been fixed, or maximum ranges for prices for securities shall have been fixed, or maximum ranges for prices for securities shall have been required by FINRA or by order of the Commission or any other government authority having jurisdiction, or (iii) if the United States shall have become involved in a new war or an increase in existing major hostilities, or (iv) if a banking moratorium has been declared by a New York State or Federal authority, or (v) if a moratorium on foreign exchange trading has been declared which materially adversely impacts the United States securities market, or (vi) if such termination neither the Company shall have sustained a material loss by fire, flood, accident, hurricane, earthquake, theft, sabotage or other calamity or malicious act which, whether or not such loss shall have been insured, will, in the Representative's sole opinion, make it inadvisable to proceed with the delivery of the Units, or (vii) if the Company is in material breach of any of its representations, warranties or covenants hereunder, or (viii) if the Representative shall have become aware after the date hereof of such a material adverse change in the conditions of the Company, or such adverse material change in general market conditions, including without limitation as a result of terrorist activities after the date hereof, as in the Representative's sole judgment would make it impracticable to proceed with the offering, sale and/or delivery of the Units or to enforce contracts made by the Underwriters for the sale of the Public Securities. 9.3 Expenses. If this Agreement shall be terminated pursuant to Section 6 hereof, the Company shall not then be under any liability to any Underwriter; but, if Underwriter (except to the extent provided in Section 4(a)(vii) and Section 6 hereof) nor shall any Underwriter (other than an Underwriter who shall have failed, otherwise than for any other reason, any Units are not delivered by or on behalf of the Company as provided herein or the Underwriters decline to purchase the Units for any some reason permitted under this Agreement, within to purchase the time specified herein or amount of Firm Shares agreed by such Underwriter to be purchased hereunder) be under any extensions thereof pursuant liability to the terms herein, (i) the obligations of the Company to pay the out of pocket accountable expenses related (except to the transactions contemplated herein shall extent provided in Section 6 hereof). (c) Postponement of Closing. If Firm Shares to which a default relates are to be governed purchased by Section 3.10 hereof, and (ii) the non-defaulting Underwriters or by any other party or parties, the Representative or the Company shall reimburse have the Representative right to postpone the First Closing Date for any reasonable and accountable costs and expenses incurred not more than seven business days in connection with enforcing any provisions order that the necessary changes in the Registration Statement, in the Time of this Agreement. 9.4 Indemnification. Notwithstanding any contrary provision contained Sale Disclosure Package, in this Agreement, any election hereunder the Prospectus or any termination of this Agreement, and whether or not this Agreement is otherwise carried out, the provisions of Section 5 shall not be in any way affected by other documents, as well as any other arrangements, may be effected. As used herein, the term "Underwriter" includes any person substituted for an Underwriter under this Section 8. (d) No Relief from Liability. No action taken pursuant to this Section shall relieve any defaulting Underwriter from liability, if any, in respect of such election or termination or failure to carry out the terms of this Agreement or any part hereof. default. View More
Found in Motus GI Holdings, Inc. contract
Representations and Agreements to Survive Delivery. Except as the context otherwise requires, all All representations, warranties and agreements contained in this Agreement shall be deemed to be representations, warranties and agreements as of the Closing Date or the Option Closing Date, if any, and such representations, warranties warranties, and agreements of the Company herein or in certificates delivered pursuant hereto, and the agreements of the several Underwriters and the Company, including the indemnity agreements Company contained in Sec...tion 5 6 hereof, shall remain operative and in full force and effect regardless of any investigation made by or on behalf of any Underwriter or any controlling person thereof, or the Underwriters, the Company, Company or any of its officers, directors or controlling persons, and shall survive delivery of, and payment for, the Securities to and by the Underwriters hereunder and any termination of this Agreement Agreement. 33 8. Substitution of Underwriters. (a) Obligation to Purchase Under Certain Circumstances. If any Underwriter or Underwriters shall fail to take up and pay for the issuance amount of Firm Shares agreed by such Underwriter or Underwriters to be purchased hereunder, upon tender of such Firm Shares in accordance with the terms hereof, and delivery the amount of Firm Shares not purchased does not aggregate more than 10% of the Public Securities total amount of Firm Shares set forth in Schedule I hereto, the remaining Underwriters shall be obligated to take up and pay for (in proportion to their respective underwriting obligations hereunder as set forth in Schedule I hereto except as may otherwise be determined by you) the Firm Shares that the withdrawing or defaulting Underwriters until agreed but failed to purchase. (b) Termination Under Certain Circumstances. If any Underwriter or Underwriters shall fail to take up and pay for the earlier amount of Firm Shares agreed by such Underwriter or Underwriters to be purchased hereunder, upon tender of such Firm Shares in accordance with the terms hereof, and the amount of Firm Shares not purchased aggregates more than 10% of the expiration total amount of Firm Shares set forth in Schedule I hereto, and arrangements satisfactory to you for the purchase of such Firm Shares by other persons are not made within 36 hours thereafter, this Agreement shall terminate. In the event of any applicable statute of limitations and the seventh (7th) anniversary of the later of the Closing Date or the Option Closing Date, if any, at which time the representations, warranties and agreements shall terminate and be of no further force and effect. 40 9. Effective Date of This Agreement and Termination Thereof. 9.1 Effective Date. This Agreement shall become effective on the Effective Date at the time the Registration Statement is declared effective by the Commission. 9.2 Termination. The Representative shall have the right to terminate this Agreement at any time prior to the Closing Date, (i) if any domestic or international event or act or occurrence has materially disrupted, or in the Representative's opinion will in the immediate future materially disrupt, general securities markets in the United States; or (ii) if trading on the NYSE, the NYSE American, the Nasdaq Global Select Market, the Nasdaq Global Market, or the Nasdaq Capital Market or quoted on the over the counter market shall have been suspended, or minimum or maximum prices for trading shall have been fixed, or maximum ranges for prices for securities shall have been fixed, or maximum ranges for prices for securities shall have been required by FINRA or by order of the Commission or any other government authority having jurisdiction, or (iii) if the United States shall have become involved in a new war or an increase in existing major hostilities, or (iv) if a banking moratorium has been declared by a New York State or Federal authority, or (v) if a moratorium on foreign exchange trading has been declared which materially adversely impacts the United States securities market, or (vi) if such termination, neither the Company shall have sustained a material loss by fire, flood, accident, hurricane, earthquake, theft, sabotage or other calamity or malicious act which, whether or not such loss shall have been insured, will, in the Representative's sole opinion, make it inadvisable to proceed with the delivery of the Units, or (vii) if the Company is in material breach of any of its representations, warranties or covenants hereunder, or (viii) if the Representative shall have become aware after the date hereof of such a material adverse change in the conditions of the Company, or such adverse material change in general market conditions, including without limitation as a result of terrorist activities after the date hereof, as in the Representative's sole judgment would make it impracticable to proceed with the offering, sale and/or delivery of the Units or to enforce contracts made by the Underwriters for the sale of the Public Securities. 9.3 Expenses. If this Agreement shall be terminated pursuant to Section 6 hereof, the Company shall not then be under any liability to any Underwriter; but, if Underwriter (except to the extent provided in Section 4(a)(vii) and Section 6 hereof) nor shall any Underwriter (other than an Underwriter who shall have failed, otherwise than for any other reason, any Units are not delivered by or on behalf of the Company as provided herein or the Underwriters decline to purchase the Units for any some reason permitted under this Agreement, within to purchase the time specified herein or amount of Firm Shares agreed by such Underwriter to be purchased hereunder) be under any extensions thereof pursuant liability to the terms herein, (i) the obligations of the Company to pay the out of pocket accountable expenses related (except to the transactions contemplated herein shall extent provided in Section 6 hereof). (c) Postponement of Closing. If Firm Shares to which a default relates are to be governed purchased by Section 3.10 hereof, and (ii) the non-defaulting Underwriters or by any other party or parties, the Representatives or the Company shall reimburse have the Representative right to postpone the First Closing Date for any reasonable and accountable costs and expenses incurred not more than seven business days in connection with enforcing any provisions order that the necessary changes in the Registration Statement, in the Time of this Agreement. 9.4 Indemnification. Notwithstanding any contrary provision contained Sale Disclosure Package, in this Agreement, any election hereunder the Prospectus or any termination of this Agreement, and whether or not this Agreement is otherwise carried out, the provisions of Section 5 shall not be in any way affected by other documents, as well as any other arrangements, may be effected. As used herein, the term "Underwriter" includes any person substituted for an Underwriter under this Section 8. (d) No Relief from Liability. No action taken pursuant to this Section shall relieve any defaulting Underwriter from liability, if any, in respect of such election or termination or failure to carry out the terms of this Agreement or any part hereof. default. View More
Found in PROGENITY, INC. contract