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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.
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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 Underwriters Company and the Company, several Underwriters herein or in certificates delivered pursuant hereto, or made by or on behalf of them, including but not limited to the indemn...ity agreements agreement of the Company and the Representative 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 or the issuance and delivery Agreement. -26- 8. Termination of the Public Securities this Agreement. (a) Right 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. Terminate. The Representative shall have the right to terminate this Agreement by giving notice to the Company as hereinafter specified at any time at or prior to the First Closing Date, and the option referred to in Section 3(b), if exercised, may be cancelled at any time prior to the Second Closing Date, if (i) if the Company shall have failed, refused or been unable, at or prior to such Closing Date, to perform any domestic agreement on its part to be performed hereunder (other than, prior to the First Closing Date or international event the Second Closing Date, agreements that are intended to be performed on such date), (ii) any condition of the Underwriters' obligations hereunder is not fulfilled (other than, prior to the First Closing Date or act or occurrence has materially disrupted, or the Second Closing Date, conditions that are intended to be satisfied on such date), (iii) trading in the Representative's opinion will Company's Common Stock shall have been suspended by the Commission or the Nasdaq Global Market or trading in the immediate future materially disrupt, general securities markets in the United States; or (ii) if trading generally on the NYSE, the NYSE American, the Nasdaq Global Select Market, the Nasdaq Global Market, or the Nasdaq Capital NASDAQ Stock Market or quoted on the over the counter market New York Stock Exchange shall have been suspended, or (iv) minimum or maximum prices for trading shall have been fixed, or maximum ranges for prices for securities shall have been fixed, required, on the NYSE American, NASDAQ Stock Market or maximum ranges for prices for securities shall have been required New York Stock Exchange, by FINRA such Exchange or by order of the Commission Commission, FINRA or any other government authority Governmental Authority having jurisdiction, (v) a banking moratorium shall have been declared by federal or (iii) if New York state authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States, or (vi) there shall have occurred any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration by the United States shall have become involved of a national emergency or war, any material adverse change in financial markets, any substantial change or development involving a new war or an increase prospective substantial change 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 international political, financial or economic conditions, or any other calamity or malicious act which, whether or not such loss shall have been insured, will, crisis that, in the Representative's sole opinion, make judgment of the Representative, is material and adverse and makes it impractical or inadvisable to proceed with the delivery completion of the Units, or (vii) if sale of and payment for the Securities. (b) Notice of Termination. If the Representative elects to terminate this Agreement as provided in this Section, the Company is in material shall be notified promptly by the Representative by telephone, confirmed by letter. (c) Effect of Termination. No party shall be relieved of any liability under this Agreement arising from any breach of any its obligations hereunder occurring prior to termination 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 this Agreement 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 termination 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.
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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 5(a)(viii), Section 5(a)(xviii), Section 5(a)(xix) and Section 7 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 delivery of, and payment for, the Securities to and by the Underwriters hereunder. 18 9. 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. Agreement. (a) The Representative Representatives shall have the right to terminate this Agreement by giving notice to the Company as hereinafter specified at any time at or prior to the Closing Date, Date or any Option Closing Date (as to the Option Securities to be purchased on such Option Closing Date only), if in the discretion of the Representatives, (i) if there has occurred any domestic material adverse change in the securities markets or international event or any event, act or occurrence that has materially disrupted, or in the Representative's opinion of the Representatives, will in the immediate future materially disrupt, the securities markets or there shall be such a material adverse change in general securities financial, political or economic conditions or the effect of international conditions on the financial markets in the United States; States is such as to make it, in the judgment of the Representatives, inadvisable or impracticable to market the Securities or enforce contracts for the sale of the Securities (ii) if trading in the Company's Common Stock or the Warrants shall have been suspended by the Commission or Nasdaq or trading in securities generally on the NYSE, Nasdaq Stock Market, 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 NYSE American shall have been suspended, or (iii) minimum or maximum prices for trading shall have been fixed, or maximum ranges for prices for securities shall have been fixed, required, on the Nasdaq Stock Market, the NYSE or maximum ranges for prices for securities shall have been required the NYSE American, by FINRA such exchange or by order of the Commission or any other government governmental authority having jurisdiction, (iv) a banking moratorium shall have been declared by federal or (iii) if state authorities, (v) there shall have occurred any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration by the United States shall have become involved of a national emergency or war, any substantial change or development involving a prospective substantial change 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 international political, financial or economic conditions or any other calamity or malicious act which, crisis, or (vi) the Company suffers any loss by strike, fire, flood, earthquake, accident or other calamity, whether or not such loss shall have been insured, will, covered by insurance, or (vii) in the Representative's sole opinion, make it inadvisable to proceed with the delivery judgment of the Units, Representatives, there has been, since the time of execution of this Agreement or (vii) if since the Company respective dates as of which information is given in material breach the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus, 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, assets, properties, condition, financial or such adverse material change in general market conditions, including without limitation as a result of terrorist activities after the date hereof, as otherwise, or in the Representative's sole judgment would make it impracticable to proceed with the offering, sale and/or delivery results of the Units operations, business affairs 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 business prospects of the Company and its subsidiaries considered 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 a whole, whether or not this Agreement is otherwise carried out, arising in the ordinary course of business. Any such termination shall be without liability of any party to any other party except that the provisions of Section 5 5(a)(viii), Section 5(a)(xviii), Section 5(a)(xix) and Section 7 hereof shall not at all times be in any way affected by effective and shall survive such election or termination or failure termination. (b) If the Representatives elects to carry out the terms of terminate this Agreement or any part hereof. as provided in this Section 9, the Company and the other Underwriters shall be notified promptly by the Representatives by telephone, confirmed by letter.
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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 5(a)(viii), Section 5(a)(xviii), Section 5(a)(xix) and Section 7 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 delivery of, and payment for, the Shares to and by the Underwriters hereunder. 19 9. 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. Agreement. (a) The Representative shall have the right to terminate this Agreement by giving notice to the Company as hereinafter specified at any time at or prior to the Closing Date, Date or any Option Closing Date (as to the Option Shares to be purchased on such Option Closing Date only), if in the discretion of the Representative, (i) if there has occurred any domestic material adverse change in the securities markets or international event or any event, act or occurrence that has materially disrupted, or in the Representative's opinion of the Representative, will in the immediate future materially disrupt, the securities markets or there shall be such a material adverse change in general securities financial, political or economic conditions or the effect of international conditions on the financial markets in the United States; States is such as to make it, in the judgment of the Representative, inadvisable or impracticable to market the Securities or enforce contracts for the sale of the Shares (ii) if trading in the Company's Common Stock shall have been suspended by the Commission or Nasdaq or trading in securities generally on the NYSE, Nasdaq Stock Market, 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 NYSE American shall have been suspended, or (iii) minimum or maximum prices for trading shall have been fixed, or maximum ranges for prices for securities shall have been fixed, required, on the Nasdaq Stock Market, the NYSE or maximum ranges for prices for securities shall have been required the NYSE American, by FINRA such exchange or by order of the Commission or any other government governmental authority having jurisdiction, (iv) a banking moratorium shall have been declared by federal or (iii) if state authorities, (v) there shall have occurred any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration by the United States shall have become involved of a national emergency or war, any substantial change or development involving a prospective substantial change 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 international political, financial or economic conditions or any other calamity or malicious act which, crisis, or (vi) the Company suffers any loss by strike, fire, flood, earthquake, accident or other calamity, whether or not such loss shall have been insured, will, covered by insurance, or (vii) in the Representative's sole opinion, make it inadvisable to proceed with the delivery judgment of the Units, Representative, there has been, since the time of execution of this Agreement or (vii) if since the Company respective dates as of which information is given in material breach the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus, 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, assets, properties, condition, financial or such adverse material change in general market conditions, including without limitation as a result of terrorist activities after the date hereof, as otherwise, or in the Representative's sole judgment would make it impracticable to proceed with the offering, sale and/or delivery results of the Units operations, business affairs 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 business prospects of the Company and its subsidiaries considered 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 a whole, whether or not this Agreement is otherwise carried out, arising in the ordinary course of business. Any such termination shall be without liability of any party to any other party except that the provisions of Section 5 5(a)(viii), Section 5(a)(xviii), Section 5(a)(xix) and Section 7 hereof shall not at all times be in any way affected by effective and shall survive such election or termination or failure termination. (b) If the Representative elects to carry out the terms of terminate this Agreement or any part hereof. as provided in this Section 9, the Company and the other Underwriters shall be notified promptly by the Representative by telephone, confirmed by letter.
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Found in
ASP Isotopes 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 Company herein or in certificates delivered pursuant hereto, including, but not limited to, the agreements of the Underwriter and the Company, including the indemnity agre...ements Company contained in Section 5 5(a)(vii) and Section 7 hereof, shall remain operative and in full force and effect regardless of any investigation made by or on behalf of the Underwriters, Underwriter or any controlling person thereof, or the Company, Company or any of its officers, directors, or controlling persons, and shall survive termination delivery of, and payment for, the Securities to and by the Underwriter hereunder. 21 9. 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. Agreement. (a) The Representative Underwriter shall have the right to terminate this Agreement by giving notice to the Company as hereinafter specified at any time at or prior to the Closing Date, if in the discretion of the Underwriter, (i) if there has occurred any domestic material adverse change in the securities markets or international event or any event, act or occurrence that has materially disrupted, or in the Representative's opinion of the Underwriter, will in the immediate future materially disrupt, the securities markets or there shall be such a material adverse change in general securities financial, political or economic conditions or the effect of international conditions on the financial markets in the United States; States is such as to make it, in the judgment of the Underwriter, inadvisable or impracticable to market the Shares or enforce contracts for the sale of the Shares (ii) if trading on in the NYSE, Company's Common Stock shall have been suspended by the NYSE American, the Nasdaq Global Select Market, the Nasdaq Global Market, Commission or the Nasdaq Capital Market or quoted trading in securities generally on the over the counter market NASDAQ, NYSE or NYSE MKT shall have been suspended, or (iii) minimum or maximum prices for trading shall have been fixed, or maximum ranges for prices for securities shall have been fixed, required, on the NASDAQ, NYSE or maximum ranges for prices for securities shall have been required NYSE MKT, by FINRA such exchange or by order of the Commission or any other government governmental authority having jurisdiction, (iv) a banking moratorium shall have been declared by federal or (iii) if state authorities, (v) there shall have occurred any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration by the United States shall have become involved of a national emergency or war, any substantial change or development involving a prospective substantial change 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 international political, financial or economic conditions or any other calamity or malicious act which, crisis, or (vi) the Company suffers any loss by strike, fire, flood, earthquake, accident or other calamity, whether or not such loss shall have been insured, will, covered by insurance, or (vii) in the Representative's sole opinion, make it inadvisable to proceed with the delivery judgment of the Units, Underwriter, there has been, since the time of execution of this Agreement or (vii) if since the Company respective dates as of which information is given in material breach of the Prospectus, 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, assets, properties, condition, financial or such adverse material change in general market conditions, including without limitation as a result of terrorist activities after the date hereof, as otherwise, or in the Representative's sole judgment would make it impracticable to proceed with the offering, sale and/or delivery results of the Units operations, business affairs 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 business prospects of the Company and its subsidiaries considered 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 a whole, whether or not this Agreement is otherwise carried out, arising in the ordinary course of business. Any such termination shall be without liability of any party to any other party except that the provisions of Section 5 5(a)(vii) and Section 7 hereof shall not at all times be in any way affected by effective and shall survive such election or termination or failure termination. (b) If the Underwriter elects to carry out the terms of terminate this Agreement or any part hereof. as provided in this Section, the Company shall be notified promptly by the Underwriter by telephone, confirmed by letter.
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Found in
Dare Bioscience, Inc. contract
Representations and Agreements to Survive Delivery. Except as the context otherwise requires, all All representations, warranties warranties, and agreements contained in this Agreement shall be deemed to be representations, warranties and agreements as of the Closing Date Company herein or in certificates delivered pursuant hereto, including, but not limited to, the Option Closing Date, if any, and such representations, warranties and agreements of the Underwriters and the Company, including the indemnity agreements Company contained in Section 5...Underwriters, Underwriters or any controlling person thereof, or the Company, Company or any of its officers, directors, or controlling persons, and shall survive termination delivery of, and payment for, the Shares to and by the Underwriters hereunder. 22 9. 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. Agreement. (a) The Representative shall have the right to terminate this Agreement by giving notice to the Company as hereinafter specified at any time at or prior to the a Closing Date, if in the discretion of the Representative, (i) if there has occurred any domestic material adverse change in the securities markets or international event or any event, act or occurrence that has materially disrupted, or in the Representative's opinion of the Representative, will in the immediate future materially disrupt, the securities markets or there shall be such a material adverse change in general securities financial, political or economic conditions or the effect of international conditions on the financial markets in the United States; States is such as to make it, in the judgment of the Representative, inadvisable or impracticable to market the Shares or enforce contracts for the sale of the Shares (ii) if trading in the Company's Common Stock shall have been suspended by the Commission or Nasdaq or trading in securities generally on the NYSE, Nasdaq, 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 NYSE MKT shall have been suspended, or (iii) minimum or maximum prices for trading shall have been fixed, or maximum ranges for prices for securities shall have been fixed, required, on Nasdaq, the NYSE or maximum ranges for prices for securities shall have been required NYSE MKT, by FINRA such exchange or by order of the Commission or any other government governmental authority having jurisdiction, (iv) a banking moratorium shall have been declared by federal or (iii) if state authorities, (v) there shall have occurred any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration by the United States shall have become involved of a national emergency or war, any substantial change or development involving a prospective substantial change 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 international political, financial or economic conditions or any other calamity or malicious act which, crisis, (vi) the Company suffers any loss by strike, fire, flood, earthquake, accident or other calamity, whether or not such loss shall have been insured, will, covered by insurance, or (vii) in the Representative's sole opinion, make it inadvisable to proceed with the delivery reasonable judgment of the Units, Representative, there has been, since the time of execution of this Agreement or (vii) if since the Company respective dates as of which information is given in material breach of the Prospectus, 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, assets, properties, condition, financial or such adverse material change in general market conditions, including without limitation as a result of terrorist activities after the date hereof, as otherwise, or in the Representative's sole judgment would make it impracticable to proceed with the offering, sale and/or delivery results of the Units operations, business affairs 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 business prospects of the Company and its subsidiaries considered 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 a whole, whether or not this Agreement is otherwise carried out, arising in the ordinary course of business. Any such termination shall be without liability of any party to any other party except that the provisions of Section 5 5(a)(xi) and Section 7 hereof shall not at all times be in any way affected by effective and shall survive such election or termination or failure termination. (b) If the Representative elects to carry out the terms of terminate this Agreement or any part hereof. as provided in this Section, the Company shall be notified promptly by the Representative by telephone, confirmed by letter.
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Found in
BioNano Genomics, 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 agreemen...ts Company contained in Section 5 5(a)(x) and Section 7 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 delivery of, and payment for, the Securities to and by the Underwriters hereunder. -31- 9. 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. Agreement. (a) The Representative Representatives shall have the right to terminate this Agreement by giving notice to the Company as hereinafter specified at any time at or prior to the Closing Date, Date if in the discretion of the Representatives, (i) if there has occurred any domestic material adverse change in the securities markets or international event or any event, act or occurrence that has materially disrupted, or in the Representative's opinion of the Representatives, will in the immediate future materially disrupt, the securities markets or there shall be such a material adverse change in general securities financial, political or economic conditions or the effect of international conditions on the financial markets in the United States; States is such as to make it, in the judgment of the Representatives, inadvisable or impracticable to market the Securities or enforce contracts for the sale of the Securities, (ii) if trading in the Company's Common Stock shall have been suspended by the Commission or Nasdaq, or trading in securities generally on The Nasdaq Stock Market, the NYSE, New York Stock Exchange ("NYSE"), or 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 American shall have been suspended, or (iii) minimum or maximum prices for trading shall have been fixed, or maximum ranges for prices for securities shall have been fixed, required, on The Nasdaq Stock Market, NYSE or maximum ranges for prices for securities shall have been required NYSE American, by FINRA such exchange or by order of the Commission or any other government governmental authority having jurisdiction, (iv) a banking moratorium shall have been declared by federal or (iii) if New York State authorities, (v) there shall have occurred any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration by the United States shall have become involved of a national emergency or war, any substantial change or development involving a prospective substantial change 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 international political, financial or economic conditions or any other calamity or malicious act which, crisis, (vi) the Company suffers any loss by strike, fire, flood, earthquake, accident or other calamity, whether or not such loss shall have been insured, will, covered by insurance, or (vii) in the Representative's sole opinion, make it inadvisable to proceed with the delivery judgment of the Units, Representatives, there has been, since the time of execution of this Agreement or (vii) if since the Company respective dates as of which information is given in material breach of the Prospectus, 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, assets, properties, condition, financial or such adverse material change in general market conditions, including without limitation as a result of terrorist activities after the date hereof, as otherwise, or in the Representative's sole judgment would make it impracticable to proceed with the offering, sale and/or delivery results of the Units operations, business affairs 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 business prospects of the Company and its subsidiaries considered 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 a whole, whether or not this Agreement is otherwise carried out, arising in the ordinary course of business. Any such termination shall be without liability of any party to any other party except that the provisions of Section 5 5(a)(x) and Section 7 hereof shall not at all times be in any way affected by effective and shall survive such election or termination or failure termination. (b) If the Representatives elect to carry out the terms of terminate this Agreement or any part hereof. as provided in this Section, the Company shall be notified promptly by the Representatives by telephone, confirmed by letter.
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Representations and Agreements to Survive Delivery. Except as the context otherwise requires, all All representations, warranties warranties, and agreements contained in this Agreement shall be deemed to be representations, warranties and agreements as of the Closing Date Company herein or in certificates delivered pursuant hereto, including, but not limited to, the Option Closing Date, if any, and such representations, warranties and agreements of the Underwriters and the Company, including the indemnity agreements Company contained in Section 5...Underwriters, Underwriters or any controlling person thereof, or the Company, Company or any of its officers, directors, or controlling persons, and shall survive termination delivery of, and payment for, the Securities to and by the Underwriters hereunder. 30 9. 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. Agreement. (a) The Representative shall have the right to terminate this Agreement by giving notice to the Company as hereinafter specified at any time at or prior to the Closing Date, if in the discretion of the Representative, (i) if there has occurred any domestic material adverse change in the securities markets or international event or any event, act or occurrence that has materially disrupted, or in the Representative's reasonable opinion of the Representative, will in the immediate future materially disrupt, the securities markets or there shall be such a material adverse change in general securities financial, political or economic conditions or the effect of international conditions on the financial markets in the United States; States is such as to make it, in the reasonable judgment of the Representative, inadvisable or impracticable to market the Shares or enforce contracts for the sale of the Shares (ii) if trading in the Company's Common Stock shall have been suspended by the Commission or the NASDAQ or trading in securities generally on the NYSE, the NASDAQ, New York Stock Exchange or NYSE American, the Nasdaq Global Select Market, the Nasdaq Global Market, or the Nasdaq Capital Market or quoted on the over the counter market MKT shall have been suspended, or (iii) minimum or maximum prices for trading shall have been fixed, or maximum ranges for prices for securities shall have been fixed, required, on the NASDAQ, New York Stock Exchange or maximum ranges for prices for securities shall have been required NYSE MKT, by FINRA such exchange or by order of the Commission or any other government governmental authority having jurisdiction, (iv) a banking moratorium shall have been declared by federal or (iii) if state authorities, (v) there shall have occurred any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration by the United States shall have become involved of a national emergency or war, any substantial change or development involving a prospective substantial change 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 international political, financial or economic conditions or any other calamity or malicious act which, crisis, or (vi) the Company suffers any loss by strike, fire, flood, earthquake, accident or other calamity, whether or not such loss shall have been insured, will, covered by insurance, or (vii) in the Representative's sole opinion, make it inadvisable to proceed with the delivery reasonable judgment of the Units, Representative, there has been, since the time of execution of this Agreement or (vii) if since the Company respective dates as of which information is given in material breach of the Prospectus, 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, assets, properties, condition, financial or such adverse material change in general market conditions, including without limitation as a result of terrorist activities after the date hereof, as otherwise, or in the Representative's sole judgment would make it impracticable to proceed with the offering, sale and/or delivery results of the Units operations, business affairs 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 business prospects of the Company and its subsidiaries considered 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 a whole, whether or not this Agreement is otherwise carried out, arising in the ordinary course of business. Any such termination shall be without liability of any party to any other party except that the provisions of Section 5 5(a)(vii) and Section 7 hereof shall not at all times be in any way affected by effective and shall survive such election or termination or failure termination. (b) If the Representative elects to carry out the terms of terminate this Agreement or any part hereof. as provided in this Section, the Company shall be notified promptly by the Representative by telephone, confirmed by letter.
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Neuralstem, 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 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 5(a)(viii) and Section 7 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 delivery of, and payment for, the Shares and the Warrants to and by the Underwriters hereunder. -26- 9. Termination of this Agreement or the issuance and delivery of the Public Securities to the Agreement. (a) 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 by giving notice to the Company as hereinafter specified at any time at or prior to the Closing Date, Date or any Option Closing Date (as to the Option Shares and the Option Warrants to be purchased on such Option Closing Date only), if in the discretion of the Underwriters, (i) if there has occurred any domestic material adverse change in the securities markets or international event or any event, act or occurrence that has materially disrupted, or in the Representative's opinion of the Underwriters, will in the immediate future materially disrupt, the securities markets or there shall be such a material adverse change in general securities financial, political or economic conditions or the effect of international conditions on the financial markets in the United States; States is such as to make it, in the judgment of the Underwriters, inadvisable or impracticable to market the Shares and the Warrants or enforce contracts for the sale of the Shares and the Warrants, (ii) if trading in the Company's Common Stock shall have been suspended by the Commission or Nasdaq, (iii) trading in securities generally on the NYSE, Nasdaq Stock Market, 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 NYSE MKT shall have been suspended, or (iv) minimum or maximum prices for trading shall have been fixed, or maximum ranges for prices for securities shall have been fixed, required, on the Nasdaq Stock Market, the NYSE or maximum ranges for prices for securities shall have been required NYSE MKT, by FINRA such exchange or by order of the Commission or any other government governmental authority having jurisdiction, (v) a banking moratorium shall have been declared by federal or (iii) if state authorities, (vi) there shall have occurred any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration by the United States shall have become involved of a national emergency or war, any substantial change or development involving a prospective substantial change 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 international political, financial or economic conditions or any other calamity or malicious act which, crisis, (vii) the Company suffers any loss by strike, fire, flood, earthquake, accident or other calamity, whether or not such loss shall have been insured, will, covered by insurance, or (viii) in the Representative's sole opinion, make it inadvisable to proceed with the delivery judgment of the Units, Underwriters, there has been, since the time of execution of this Agreement or (vii) if since the Company respective dates as of which information is given in material breach the Registration Statement, the Time of Sale Disclosure Package and the Final Prospectus, 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 assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects 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, arising in the ordinary course of business. Any such termination shall be without liability of any party to any other party except that the provisions of Section 5 5(a)(viii) and Section 7 hereof shall not at all times be in any way affected by effective and shall survive such election or termination or failure termination. (b) If the Underwriters elect to carry out the terms of terminate this Agreement or any part hereof. as provided in this Section, the Company shall be notified promptly by the Underwriters by telephone, confirmed by letter.
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SenesTech, 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 Company contained herein or in certificates delivered pursuant hereto, including, but not limited to, the agreements of the Underwriter and the Company, including the inde...mnity agreements Company contained in Section 5 5(a)(viii) and Section 7 hereof, shall remain operative and in full force and effect regardless of any investigation made by or on behalf of the Underwriters, Underwriter or any controlling persons thereof, or the Company, Company or any of its officers, directors, or controlling persons, and shall survive termination delivery of, and payment for, the Shares, the Preferred Shares and the Warrants to and by the Underwriter hereunder. -18- 9. 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. Agreement. (a) The Representative Underwriter shall have the right to terminate this Agreement by giving notice to the Company as hereinafter specified at any time at or prior to the Closing Date, Date or any Option Closing Date (as to the Option Shares and Option Warrants to be purchased on such Option Closing Date only), if in the discretion of the Underwriter, (i) if there has occurred any domestic material adverse change in the securities markets or international event or any event, act or occurrence that has materially disrupted, or in the Representative's opinion of the Underwriter, will in the immediate future materially disrupt, the securities markets or there shall be such a material adverse change in general securities financial, political or economic conditions or the effect of international conditions on the financial markets in the United States; States is such as to make it, in the judgment of the Underwriter, inadvisable or impracticable to market the Shares, the Preferred Shares and the Warrants or enforce contracts for the sale of the Shares, the Preferred Shares and the Warrants, (ii) if trading in the Company's Common Stock shall have been suspended by the Commission, the Nasdaq or the OTCQB (other than solely as a result of the uplisting of the Common Stock to Nasdaq contemplated hereby) or trading in securities generally on the NYSE, Nasdaq Stock Market, 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 NYSE MKT shall have been suspended, or (iii) minimum or maximum prices for trading shall have been fixed, or maximum ranges for prices for securities shall have been fixed, required, on the Nasdaq Stock Market, the NYSE or maximum ranges for prices for securities shall have been required NYSE MKT, by FINRA such exchange or by order of the Commission or any other government governmental authority having jurisdiction, (iv) a banking moratorium shall have been declared by federal or (iii) if state authorities, (v) there shall have occurred any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration by the United States shall have become involved of a national emergency or war, any substantial change or development involving a prospective substantial change 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 international political, financial or economic conditions or any other calamity or malicious act which, crisis, or (vi) the Company suffers any loss by strike, fire, flood, earthquake, accident or other calamity, whether or not such loss shall have been insured, will, covered by insurance, or (vii) in the Representative's sole opinion, make it inadvisable to proceed with the delivery judgment of the Units, Underwriter, there has been, since the time of execution of this Agreement or (vii) if since the Company respective dates as of which information is given in material breach the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus, 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, assets, properties, condition, financial or such adverse material change in general market conditions, including without limitation as a result of terrorist activities after the date hereof, as otherwise, or in the Representative's sole judgment would make it impracticable to proceed with the offering, sale and/or delivery results of the Units operations, business affairs 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 business prospects of the Company and its subsidiaries considered 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 a whole, whether or not this Agreement is otherwise carried out, arising in the ordinary course of business. Any such termination shall be without liability of any party to any other party except that the provisions of Section 5 5(a)(viii) and Section 7 hereof shall not at all times be in any way affected by effective and shall survive such election or termination or failure termination. (b) If the Underwriter elects to carry out the terms of terminate this Agreement or any part hereof. as provided in this Section, the Company shall be notified promptly by the Underwriter by telephone, confirmed by letter.
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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 contained herein or in certificates delivered pursuant hereto, including, but not limited to, the agreements of the Underwriter and the Company, including the inde...mnity agreements Company contained in Section 5 5(a)(viii) and Section 7 hereof, shall remain operative and in full force and effect regardless of any investigation made by or on behalf of the Underwriters, Underwriter or any controlling persons thereof, or the Company, Company or any of its officers, directors, or controlling persons, and shall survive termination delivery of, and payment for, the Shares, the Preferred Shares and the Warrants to and by the Underwriter hereunder. -18- 9. 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. Agreement. (a) The Representative Underwriter shall have the right to terminate this Agreement by giving notice to the Company as hereinafter specified at any time at or prior to the Closing Date, Date or any Option Closing Date (as to the Option Shares and/or Option Warrants to be purchased on such Option Closing Date only), if in the discretion of the Underwriter, (i) if there has occurred any domestic material adverse change in the securities markets or international event or any event, act or occurrence that has materially disrupted, or in the Representative's opinion of the Underwriter, will in the immediate future materially disrupt, the securities markets or there shall be such a material adverse change in general securities financial, political or economic conditions or the effect of international conditions on the financial markets in the United States; States is such as to make it, in the judgment of the Underwriter, inadvisable or impracticable to market the Shares, the Preferred Shares and the Warrants or enforce contracts for the sale of the Shares, the Preferred Shares and the Warrants, (ii) if trading in the Company's Common Stock shall have been suspended by the Commission, the Nasdaq or the OTCQB (other than solely as a result of the uplisting of the Common Stock to Nasdaq contemplated hereby) or trading in securities generally on the NYSE, Nasdaq Stock Market, 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 NYSE MKT shall have been suspended, or (iii) minimum or maximum prices for trading shall have been fixed, or maximum ranges for prices for securities shall have been fixed, required, on the Nasdaq Stock Market, the NYSE or maximum ranges for prices for securities shall have been required NYSE MKT, by FINRA such exchange or by order of the Commission or any other government governmental authority having jurisdiction, (iv) a banking moratorium shall have been declared by federal or (iii) if state authorities, (v) there shall have occurred any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration by the United States shall have become involved of a national emergency or war, any substantial change or development involving a prospective substantial change 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 international political, financial or economic conditions or any other calamity or malicious act which, crisis, or (vi) the Company suffers any loss by strike, fire, flood, earthquake, accident or other calamity, whether or not such loss shall have been insured, will, covered by insurance, or (vii) in the Representative's sole opinion, make it inadvisable to proceed with the delivery judgment of the Units, Underwriter, there has been, since the time of execution of this Agreement or (vii) if since the Company respective dates as of which information is given in material breach the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus, 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, assets, properties, condition, financial or such adverse material change in general market conditions, including without limitation as a result of terrorist activities after the date hereof, as otherwise, or in the Representative's sole judgment would make it impracticable to proceed with the offering, sale and/or delivery results of the Units operations, business affairs 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 business prospects of the Company and its subsidiaries considered 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 a whole, whether or not this Agreement is otherwise carried out, arising in the ordinary course of business. Any such termination shall be without liability of any party to any other party except that the provisions of Section 5 5(a)(viii) and Section 7 hereof shall not at all times be in any way affected by effective and shall survive such election or termination or failure termination. (b) If the Underwriter elects to carry out the terms of terminate this Agreement or any part hereof. as provided in this Section, the Company shall be notified promptly by the Underwriter by telephone, confirmed by letter.
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