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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 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...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 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 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.
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Avita Therapeutics, 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 several Underwriters, and the Company, including the indemn...ity 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. 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 ten percent (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 the Representative) 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 ten percent (10%) of the expiration total amount of any applicable statute of limitations Firm Shares set forth in Schedule I hereto, 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 arrangements satisfactory 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 purchase of the Public Securities. 9.3 Expenses. If such Firm Shares by other persons are not made 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 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 not more than seven (7) business days in order that the necessary changes in the Registration Statement, in the Time of Sale Disclosure Package, in the Prospectus or in any reasonable and accountable costs and expenses incurred in connection with enforcing other documents, as well as any provisions of this Agreement. 9.4 Indemnification. Notwithstanding any contrary provision contained other arrangements, may be effected. As used in this Agreement, the term "Underwriter" includes any election hereunder or 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 termination defaulting Underwriter from liability, if any, in respect 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.
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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 herein or in certificates delivered pursuant hereto, including but not limited to the agreements of the several Underwriters, and the Company, including the indemn...ity 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 ten percent (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 the Representative) 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 ten percent (10%) of the expiration total amount of any applicable statute of limitations Firm Shares set forth in Schedule I hereto, 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 arrangements satisfactory 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 purchase of the Public Securities. 9.3 Expenses. If such Firm Shares by other persons are not made 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 (7) 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.
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BioPharmX 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, including but not limited to the agreements of the several Underwriters, and the Company, including the indemn...ity 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 ten percent (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 the Representative) 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 ten percent (10%) of the expiration total amount of any applicable statute of limitations Firm Shares set forth in Schedule I hereto, 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 arrangements satisfactory 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 purchase of the Public Securities. 9.3 Expenses. If such Firm Shares by other persons are not made 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)(viii) 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 (7) 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.
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BioPharmX 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, including, but not limited to, the agreements of the Representatives and the Company, including the indemnity ...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, 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 hereunder. -24- 9. Default by Underwriters. If on the Closing Date or the Option Closing Date, if any, at as the case may be, any Underwriter shall fail to purchase and pay for the portion of the Shares which time the representations, warranties such Underwriter has agreed to purchase and agreements shall terminate and be pay for on such date (otherwise than by reason 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 any default on the Effective Date at part of the time Company), you, as Representatives of the Registration Statement is declared effective Underwriters, shall use your reasonable efforts to procure within 36 hours thereafter one or more of the other Underwriters, or any others, to purchase from the Company such amounts as may be agreed upon and upon the terms set forth herein, the Shares which the defaulting Underwriter or Underwriters failed to purchase. If during such 36 hours you, as such Representatives, shall not have procured such other Underwriters, or any others, to purchase the Shares agreed to be purchased by the Commission. 9.2 Termination. The Representative defaulting Underwriter or Underwriters, then (a) if the aggregate number of shares with respect to which such default shall occur does not exceed 10% of the Shares to be purchased on the Closing Date or the Option Closing date, as the case may be, the other Underwriters shall be obligated, severally, in proportion to the respective numbers of Shares which they are obligated to purchase hereunder, to purchase the Shares which such defaulting Underwriter or Underwriters failed to purchase, or (b) if the aggregate number of Shares with respect to which such default shall occur exceeds 10% of the Shares to be purchased on the Closing Date or the Option Closing Date, as the case may be, the Company or you as the Representatives of the Underwriters will have the right right, by written notice given within the next 36-hour period to the parties to this Agreement, to terminate this Agreement at any time prior without liability on the part of the non-defaulting Underwriters or of the Company except to the extent provided in Sections 5(a)(viii) and Section 7 hereof, provided, however, that if such default occurs with respect to the Additional Shares, this Agreement will not terminate as to the Underwritten Shares. In the event of a default by any Underwriter or Underwriters, as set forth in this Section 9, the Closing Date or Option Closing Date, (i) if any domestic or international event or act or occurrence has materially disrupted, as the case may be, may be postponed for such period, not exceeding seven days, as you, as Representatives, may determine in order that the required changes in the Registration Statement, the General Disclosure Package or in the Representative's opinion will Prospectus or 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, documents or (iii) if the United States arrangements may be effected. The term "Underwriter" includes any person substituted for a defaulting Representatives. Any action taken under this Section 9 shall have become involved not relieve any defaulting Underwriter from liability 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 respect of any of its representations, warranties or covenants hereunder, or (viii) if the Representative shall have become aware after the date hereof default 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 Underwriter 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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MTBC, 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. 34 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 the Representatives) 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 more than 10% of the total amount of Firm Shares set forth in Schedule I hereto, and arrangements satisfactory to the Underwriters until Representatives for 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 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 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 New York 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.
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RTI Surgical 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 Underwriters Company herein or in certificates delivered pursuant hereto, including, but not limited to, the agreements of the Representative and the Company, including the indemnity a...greements 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, 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 and delivery of the Public Securities to and by the Underwriters until the earlier of the expiration of any applicable statute of limitations and the seventh (7th) anniversary of the later of hereunder. 25 9. Default by Underwriters. If on the Closing Date or the Option Closing Date, if any, at as the case may be, any Underwriter shall fail to purchase and pay for the portion of the Securities which time the representations, warranties such Underwriter has agreed to purchase and agreements shall terminate and be pay for on such date (otherwise than by reason 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 any default on the Effective Date at part of the time Company), Representative, shall use reasonable efforts to procure within 36 hours thereafter one or more of the Registration Statement is declared effective other Underwriters, or any others, to purchase from the Company such amounts as may be agreed upon and upon the terms set forth herein, the Securities which the defaulting Underwriter or Underwriters failed to purchase. If during such 36 hours the Representatives shall not have procured such other Underwriters, or any others, to purchase the Securities agreed to be purchased by the Commission. 9.2 Termination. The defaulting Underwriter or Underwriters, then (a) if the aggregate number of shares with respect to which such default shall occur does not exceed 10% of the Securities to be purchased on the Closing Date or the Option Closing date, as the case may be, the other Underwriters shall be obligated, severally, in proportion to the respective numbers of Securities which they are obligated to purchase hereunder, to purchase the Securities which such defaulting Underwriter or Underwriters failed to purchase, or (b) if the aggregate number of Securities with respect to which such default shall occur exceeds 10% of the Securities to be purchased on the Closing Date or the Option Closing Date, as the case may be, the Company or the Representative shall will have the right right, by written notice given within the next 36-hour period to the parties to this Agreement, to terminate this Agreement at any time prior without liability on the part of the non-defaulting Underwriters or of the Company except to the extent provided in Sections 5(a)(vii) and Section 7 hereof. In the event of a default by any Underwriter or Underwriters, as set forth in this Section 9, the Closing Date or Option Closing Date, (i) if any domestic or international event or act or occurrence has materially disrupted, as the case may be, may be postponed for such period, not exceeding seven days as the Representative may determine in order that the required changes in the Registration Statement, the General Disclosure Package or in the Representative's opinion will Prospectus or 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, documents or (iii) if the United States arrangements may be effected. The term "Underwriter" includes any person substituted for a defaulting Underwriter. Any action taken under this Section 9 shall have become involved not relieve any defaulting Underwriter from liability 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 respect of any of its representations, warranties or covenants hereunder, or (viii) if the Representative shall have become aware after the date hereof default 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 Underwriter 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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NanoVibronix, Inc. contract
Representations and Agreements to Survive Delivery. Except as the context otherwise requires, all representations, warranties The indemnity 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 contribution agreements contained in Section 5 hereof, 9 of this Agreement and all representations and warranties of the Company her...ein or in certificates delivered pursuant hereto shall remain operative and in full force and effect survive, as of their respective dates, regardless of (i) any investigation made by or on behalf of SVB Leerink, any controlling persons, or the Underwriters, Company (or any of their respective officers, directors or controlling persons), (ii) delivery and acceptance of the Company, Placement Shares and payment therefor or (iii) any termination of this Agreement. 24 11. Termination. (a) SVB Leerink shall survive have the right by giving notice as hereinafter specified at any time to terminate this Agreement if (i) any Material Adverse Change, or any development that could reasonably be expected to result in a Material Adverse Change has occurred that, in the reasonable judgment of SVB Leerink, may materially impair the ability of SVB Leerink to sell the Placement Shares hereunder, (ii) the Company shall have failed, refused or been unable to perform any agreement on its part to be performed hereunder; provided, however, in the case of any failure of the Company to deliver (or cause another person to deliver) any certification, opinion, or letter required under Sections 7(m), 7(n), 7(o) or 7(p), SVB Leerink's right to terminate shall not arise unless such failure to deliver (or cause to be delivered) continues for more than thirty (30) days from the date such delivery was required; or (iii) any other condition of SVB Leerink's obligations hereunder is not fulfilled, or (iv), any suspension or limitation of trading in the Placement Shares or in securities generally on Nasdaq shall have occurred. Any such termination shall be without liability of any party to any other party except that the provisions of Section 7(g) (Expenses), Section 9 (Indemnification and Contribution), Section 10 (Representations and Agreements to Survive Delivery), Section 16 (Applicable Law; Consent to Jurisdiction) and Section 17 (Waiver of Jury Trial) hereof shall remain in full force and effect notwithstanding such termination. If SVB Leerink elects to terminate this Agreement as provided in this Section 11(a), SVB Leerink shall provide the required notice as specified in Section 12 (Notices). (b) The Company shall have the right, by giving five (5) days' notice as hereinafter specified to terminate this Agreement in its sole discretion at any time after the date of this Agreement. Any such termination shall be without liability of any party to any other party except that the provisions of Section 7(g), Section 9, Section 10, Section 16 and Section 17 hereof shall remain in full force and effect notwithstanding such termination. (c) SVB Leerink shall have the right, by giving five (5) days' notice as hereinafter specified to terminate this Agreement in its sole discretion at any time after the date of this Agreement. Any such termination shall be without liability of any party to any other party except that the provisions of Section 7(g), Section 9, Section 10, Section 16 and Section 17 hereof shall remain in full force and effect notwithstanding such termination. (d) Unless earlier terminated pursuant to this Section 11, this Agreement shall automatically terminate upon the issuance and sale of all of the Placement Shares through SVB Leerink on the terms and subject to the conditions set forth herein; provided that the provisions of Section 7(g), Section 9, Section 10, Section 16 and Section 17 hereof shall remain in full force and effect notwithstanding such termination. (e) This Agreement shall remain in full force and effect unless terminated pursuant to Sections 11(a), (b), (c), or (d) above or otherwise by mutual agreement of the parties; provided, however, that any such termination by mutual agreement shall in all cases be deemed to provide that Section 7(g), Section 9, Section 10, Section 16 and Section 17 shall remain in full force and effect. (f) Any 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 date specified in such notice of termination; provided, however, that such termination shall not be effective until the time close of business on the Registration Statement is declared effective date of receipt of such notice by SVB Leerink or the Commission. 9.2 Termination. The Representative Company, as the case may be. If such termination shall have the right to terminate this Agreement at any time occur prior to the Closing Date, (i) if Settlement Date for any domestic or international event or act or occurrence has materially disrupted, or sale of Placement Shares, such Placement Shares shall settle 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 accordance 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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Axovant Sciences 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, 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. 24 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 Units agreed by such Underwriter or Underwriters to be purchased hereunder, upon tender of such Firm Units in accordance with the terms hereof, and the amount of Units not purchased does not aggregate more than 10% of the total amount of Units 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 the Representative) the Firm Units 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 Units agreed by such Underwriter or Underwriters to be purchased hereunder, upon tender of such Firm Units in accordance with the terms hereof, and the amount of Units not purchased aggregates more than 10% of the total amount of Units set forth in Schedule I hereto, and arrangements satisfactory to the Representative for the purchase of such Units by other persons are not made within 36 hours thereafter, the Company or the issuance and delivery of Representative will have the Public Securities right, by written notice given within the next 36-hour period 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 parties to this Agreement, to terminate this Agreement at any time prior to Agreement. In 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, 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 Units 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 Units 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 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.
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S1 Biopharma, Inc. contract
Representations and Agreements to Survive Delivery. Except as the context otherwise requires, all representations, warranties The indemnity 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 contribution agreements contained in Section 5 hereof, 9 of this Agreement and all representations and warranties of the Company her...ein or in certificates delivered pursuant hereto shall remain operative and in full force and effect survive, as of their respective dates, regardless of (i) any investigation made by or on behalf of Cowen, any controlling persons, or the Underwriters, Company (or any of their respective officers, directors or controlling persons), (ii) delivery and acceptance of the Company, Placement Shares and payment therefor or (iii) any termination of this Agreement. 11. Termination. (a) Cowen shall survive have the right by giving written notice as hereinafter specified at any time to terminate this Agreement if (i) any Material Adverse Effect, or any development that could reasonably be expected to result in a Material Adverse Effect has occurred that, in the reasonable judgment of Cowen, may materially impair the ability of Cowen to sell the Placement Shares hereunder, (ii) the Company shall have failed, refused or been unable to perform any agreement on its part to be performed hereunder; provided, however, in the case of any failure of the Company to deliver (or cause another person to deliver) any certification, opinion, or letter required under Sections 7(m), 7(n), or 7(o), Cowen's right to terminate shall not arise unless such failure to deliver (or cause to be delivered) continues for more than thirty (30) days from the date such delivery was required; or (iii) any other condition of Cowen's obligations hereunder is not fulfilled; provided, however, Cowen's right to terminate pursuant to this Section 11(a)(iii) shall not arise unless such condition, if capable of being fulfilled, is not fulfilled within ten (10) days after the date the Company is provided with written notice by Cowen that such condition has not been fulfilled, or (iv), any suspension or limitation of trading in the Placement Shares or in securities generally on Nasdaq shall have occurred. Any such termination shall be without liability of any party to any other party except that the provisions of Section 7(g) (Expenses), Section 9 (Indemnification and Contribution), Section 10 (Representations and Agreements to Survive Delivery), Section 16 (Applicable Law; Consent to Jurisdiction) and Section 17 (Waiver of Jury Trial) shall remain in full force and effect notwithstanding such termination. If Cowen elects to terminate this Agreement as provided in this Section 11(a), Cowen shall provide the required written notice as specified in Section 12 (Notices). (b) The Company shall have the right, by giving ten (10) days written notice as hereinafter specified to terminate this Agreement in its sole discretion at any time after the date of this Agreement. Any such termination shall be without liability of any party to any other party except that the provisions of Section 7(g), Section 9, Section 10, Section 16 and Section 17 shall remain in full force and effect notwithstanding such termination. (c) Cowen shall have the right, by giving ten (10) days written notice as hereinafter specified, to terminate this Agreement in its sole discretion at any time after the date of this Agreement. Any such termination shall be without liability of any party to any other party except that the provisions of Section 7(g), Section 9, Section 10, Section 16 and Section 17 shall remain in full force and effect notwithstanding such termination. (d) Unless earlier terminated pursuant to this Section 11, this Agreement shall automatically terminate upon the issuance and sale of all of the Placement Shares through Cowen on the terms and subject to the conditions set forth herein; provided that the provisions of Section 7(g), Section 9, Section 10, Section 16 and Section 17 shall remain in full force and effect notwithstanding such termination. (e) This Agreement shall remain in full force and effect unless terminated pursuant to Sections 11(a), (b), (c), or (d) above or otherwise by mutual agreement of the parties; provided, however, that any such termination by mutual agreement shall in all cases be deemed to provide that Section 7(g), Section 9, Section 10, Section 16 and Section 17 shall remain in full force and effect. Upon termination of this Agreement, the Company shall not have any liability to Cowen for any discount, commission or other compensation with respect to any Placement Shares not sold through Cowen pursuant to this Agreement. (f) Any 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 date specified in such notice of termination; provided, however, that such termination shall not be effective until the time close of business on the Registration Statement is declared effective date of receipt of such notice by Cowen or the Commission. 9.2 Termination. The Representative Company, as the case may be. If such termination shall have the right to terminate this Agreement at any time occur prior to the Closing Date, (i) if Settlement Date for any domestic or international event or act or occurrence has materially disrupted, or sale of Placement Shares, such Placement Shares shall settle 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 accordance 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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ALBIREO PHARMA, INC. contract
