Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock hereunder on any Closing Date and the aggregate number of shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the sh
...ares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the Representatives and the Company for the purchase of such shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect.
View More
Substitution of Underwriters. If
any Underwriter or the Underwriters shall default in
its or their obligations to purchase shares of Stock hereunder on any Closing Date and
the aggregate number of shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase th...e shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the Representatives Underwriters and the Company for the purchase of such shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If In the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part event of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter or the Company, except that 10, the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect. 33 11. ABSENCE OF FIDUCIARY RELATIONSHIP. The Company acknowledges and agrees that: (a) the Underwriters' responsibility to the Company is solely contractual in nature, each Underwriters has been retained solely to act as underwriter in connection with the sale of the Stock and no fiduciary, advisory or agency relationship between the Company and such Underwriter has been created in respect of any of the transactions contemplated by this Agreement, irrespective of whether such Underwriter has advised or is advising the Company on other matters; (b) the price of the Stock set forth in this Agreement was established following discussions and arms-length negotiations with the Underwriters, and the Company is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement; (c) it has been advised that the Underwriters and their affiliates are engaged in a broad range of transactions which may involve interests that differ from those of the Company and that the Underwriters have no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship; and (d) it waives, to the fullest extent permitted by law, any claims it may have against the Underwriters for breach of fiduciary duty or alleged breach of fiduciary duty and agrees that the Underwriters shall have no liability (whether direct or indirect) to the Company in respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on behalf of or in right of the Company, including stockholders, employees or creditors of the Company.
View More
Substitution of Underwriters.
(a) [Reserved.] (b) Termination Under Certain Circumstances. If any Underwriter or Underwriters shall
default in its or their obligations fail to
purchase shares take up and pay for the amount of
Stock hereunder on any Closing Date and the aggregate number of shares which Firm Shares agreed by such
defaulting Underwriter or Underwriters
agreed but failed to
purchase does be purchased hereunder, upon tender of such Firm Shares in accordance with the terms hereof, and the amount of Firm Shares not
... exceed ten percent (10%) purchased aggregates more than 10% of the total number amount of shares to be purchased by all Underwriters on such Closing Date, the other Underwriters shall be obligated severally, Firm Shares set forth in proportion to their respective commitments hereunder, to purchase the shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date Schedule I hereto, and arrangements satisfactory to the Representatives and the Company you for the purchase of such shares Firm Shares by other persons are not made within forty-eight (48) 36 hours after such default, thereafter, this Agreement shall terminate. If In the remaining Underwriters or substituted Underwriters are required hereby or agree event of any such termination neither the Company shall be under any liability to take up all or part any 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 some reason permitted under this Agreement, to purchase the amount of Firm Shares agreed by such Underwriter to be purchased hereunder) be under any liability to the Company (except to the extent provided in Section 6 hereof). (c) [Reserved.] (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 default. 32 9. Termination. (a) Right to Terminate. You, as Representative of the shares of Stock of a defaulting Underwriter several Underwriters, shall have the right to terminate this Agreement by giving notice as hereinafter specified at any time at or Underwriters on such prior to the First Closing Date as provided Date, and the option referred to in this Section 10, 3(b), if exercised, may be cancelled at any time prior to the Second Closing Date, if (i) the Company shall have the right failed, refused or been unable, at or prior to postpone such Closing Date for a period Date, to perform any agreement on its part to be performed hereunder, (ii) any other condition of the Underwriters' obligations hereunder is not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary fulfilled, (iii) trading in the Registration Statement Common Stock shall have been suspended by the Commission or The NASDAQ Global Market or trading in securities generally on The NASDAQ Global Market or New York Stock Exchange shall have been suspended, (iv) minimum or maximum prices for trading shall have been fixed, or maximum ranges for prices for securities shall have been required, on The NASDAQ Global Market or New York Stock Exchange, by such Exchange or by order of the Prospectus, Commission or in any other documents Governmental Authority, (v) a banking moratorium shall have been declared by federal or arrangements, state authorities, or (vi) there shall have occurred any outbreak or escalation of hostilities or any change in financial markets or any calamity or crisis that, in your judgment, is material and adverse and makes it impractical or inadvisable to proceed with the Company agrees promptly to file any amendments to completion of the Registration Statement or supplements to sale of and payment for the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Securities. Any such termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter or the Company, party to any other party except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 and the provisions of Section 7 4(a)(vii) and Sections 11 through 21, inclusive, Section 6 hereof shall not at all times be effective. (b) Notice of Termination. If you elect to terminate and this Agreement as provided in this Section, the Company shall remain in full force and effect. be notified promptly by you by telephone, confirmed by letter.
View More
Substitution of Underwriters.
(a) Obligation to Purchase Under Certain Circumstances. If any Underwriter or Underwriters shall
default fail to take up and pay for the amount of Firm Units agreed by such Underwriter or Underwriters to be purchased hereunder, upon tender of such Firm Units in
its or their obligations to purchase shares of Stock hereunder on any Closing Date accordance with the terms hereof, and the
amount of Firm Units not purchased does not aggregate
number more than 10% of
shares which such the total amount ...of Firm 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 you) the Firm Units that the withdrawing or defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. purchase. (b) Termination Under Certain Circumstances. If any Underwriter or Underwriters shall so default fail to take up and pay for the amount of Firm 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 aggregate number amount of shares with respect to which such default or defaults occur is Firm Units not purchased aggregates more than ten percent (10%) 10% of the total number amount of shares to be purchased by all Underwriters on such Closing Date Firm Units set forth in Schedule I hereto, and arrangements satisfactory to the Representatives and the Company you for the purchase of such shares Firm Units by other persons are not made within forty-eight (48) 36 hours after such default, thereafter, this Agreement shall terminate. In the event of any such termination the Company shall not be under any liability to any 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 some reason permitted under this Agreement, to purchase the amount of Firm Units agreed by such Underwriter to be purchased hereunder) be under any liability to the Company (except to the extent provided in Section 6 hereof). (c) Postponement of Closing. If Firm Units to which a default relates are to be purchased by the remaining non-defaulting Underwriters or substituted Underwriters are required hereby by any other party or agree to take up all parties, the 30 Representative or part of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such the First Closing Date for a period of not more than five (5) full seven business days in order that the Company may effect whatever necessary changes may thereby be made necessary in the Registration Statement or Statement, in the Prospectus, Time of Sale Disclosure Package, in the Prospectus or in any other documents or documents, as well as any other arrangements, and may be effected. As used herein, the Company agrees promptly term "Underwriter" includes any person substituted for an Underwriter under this Section 8. (d) No Relief from Liability. No action taken pursuant to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained Section shall relieve any defaulting Underwriter from liability, if any, in respect of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect. such default.
View More
Substitution of Underwriters. If any
Underwriter one or
more of the Underwriters shall
default in its fail or
their obligations refuse to purchase
shares any of
Stock hereunder on any Closing Date the Firm Units which it or they have agreed to purchase hereunder, and the aggregate number of
shares Firm Units which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase
does is not
exceed ten percent (10%) more than one-tenth of the
total aggregate number of
shares to be purchased by all Underwrit...ers on such Closing Date, Firm Units, the other Underwriters shall be obligated obligated, severally, in proportion to their respective commitments hereunder, to purchase the shares Firm Units which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase, in the proportions which the number of Firm Units which they have respectively agreed to purchase on pursuant to Section 1 hereof bears to the aggregate number of Firm Units which all such Closing Date. non-defaulting Underwriters have so agreed to purchase, or in such other proportions as the Underwriters may specify; provided that in no event shall the maximum number of Firm Units which any Underwriter has become obligated to purchase pursuant to Section 1 hereof be increased pursuant to this Section 8 by more than one-ninth of the number of Firm Units agreed to be purchased by such Underwriter without the prior written consent of such Underwriter. If any Underwriter or Underwriters shall so default fail or refuse to purchase any Firm Units and the aggregate number of shares with respect to Firm Units which such default defaulting Underwriter or defaults occur is more than ten percent (10%) Underwriters agreed but failed or refused to purchase exceeds one-tenth of the total aggregate number of shares to be purchased by all Underwriters on such Closing Date the Firm Units and arrangements satisfactory to the Representatives Company and the Company Underwriters for the purchase of such shares by other persons Firm Units are not made within forty-eight (48) 48 hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be will terminate without liability on the part of any non-defaulting Underwriter Underwriter, or the Company (except as provided in Section 4(o) hereof) for the purchase or sale of any Units under this Agreement. In any such case either the Underwriters, on the one hand, or the Company, except on the other, shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the representations, warranties, covenants, indemnities, agreements required changes, if any, in the Registration Statement and in the Prospectus or in any other statements set forth in Section 2, the obligations with respect to expenses to documents or arrangements may be paid or reimbursed effected. Any action taken pursuant to Sections 5 and 9 and the provisions of this Section 7 and Sections 11 through 21, inclusive, 8 shall not terminate and shall remain relieve any defaulting Underwriter from liability in full force and effect. respect of any default of such Underwriter under this Agreement.
View More
Substitution of Underwriters.
(h) Obligation to Purchase Under Certain Circumstances. If any Underwriter or Underwriters shall
default fail to take up and pay for the amount of Firm Securities agreed by such Underwriter or Underwriters to be purchased hereunder, upon tender of such Firm Securities in
its or their obligations to purchase shares of Stock hereunder on any Closing Date accordance with the terms hereof, and the
amount of Firm Securities not purchased does not aggregate
number to more than 10% of
shares which such...Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. purchase. (i) Termination Under Certain Circumstances. If any Underwriter or Underwriters shall so default fail to take up and pay for the amount of Firm Securities agreed by such Underwriter or Underwriters to be purchased hereunder, upon tender of such Firm Securities in accordance with the terms hereof, and the aggregate number amount of shares with respect Firm Securities not purchased aggregates to which such default or defaults occur is more than ten percent (10%) 10% of the total number amount of shares to be purchased by all Underwriters on such Closing Date Firm Securities set forth in Schedule I hereto, and arrangements satisfactory to the Representatives and the Company you for the purchase of such shares Firm Securities by other persons are not made within forty-eight (48) 36 hours after such default, thereafter, this Agreement shall terminate. In the event of any such termination, the Company shall not have any liability to any Underwriter (except to the extent provided in Section 4 (vii) and Section 6 hereof) nor shall any Underwriter (other than an Underwriter who shall have failed, otherwise than for some reason permitted under this Agreement, to purchase the amount of Firm Securities agreed by such Underwriter to be purchased hereunder) be under any liability to the Company (except to the extent provided in Section 6 hereof). (j) Postponement of Closing. If Firm Securities to which a default relates are to be purchased by the remaining non-defaulting Underwriters or substituted Underwriters are required hereby by any other party or agree to take up all parties, the Representative or part of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such the First Closing Date for a period of not more than five (5) full seven business days in order that the Company may effect whatever necessary changes may thereby be made necessary in the Registration Statement or Statement, in the Time of Sale Prospectus, in the Prospectus or in any other documents or documents, as well as any other arrangements, and may be effected. As used herein, the Company agrees promptly term "Underwriter" includes any person substituted for an Underwriter under this Section 8. (k) No Relief from Liability. No action taken pursuant to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained Section 8 shall relieve any defaulting Underwriter from liability, if any, in respect of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect. such default.
View More
Substitution of Underwriters.
(a) Obligation to Purchase Under Certain Circumstances. If any Underwriter or Underwriters shall
default fail to take up and pay for the amount of Firm Securities agreed by such Underwriter or Underwriters to be purchased hereunder, upon tender of such Firm Securities in
its or their obligations to purchase shares of Stock hereunder on any Closing Date accordance with the terms hereof, and the
amount of Firm Securities not purchased does not aggregate
number more than 10% of
shares which such th...e total amount of Firm Securities 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 Securities that the withdrawing or defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. purchase. (b) Termination Under Certain Circumstances. If any Underwriter or Underwriters shall so default fail to take up and pay for the amount of Firm Securities agreed by such Underwriter or Underwriters to be purchased hereunder, upon tender of such Firm Securities in accordance with the terms hereof, and the aggregate number amount of shares with respect to which such default or defaults occur is Firm Securities not purchased aggregates more than ten percent (10%) 10% of the total number amount of shares to be purchased by all Underwriters on such Closing Date Firm Securities set forth in Schedule I hereto, and arrangements satisfactory to the Representatives and the Company you for the purchase of such shares Firm Securities by other persons are not made within forty-eight (48) 36 hours after such default, thereafter, this Agreement shall terminate. terminate automatically. In the event of any such termination, the Company shall not be under any liability to any Underwriter (except to the extent provided in Section 4(g) and Section 6 hereof), nor shall any Underwriter (other than an Underwriter who shall have failed, otherwise than for some reason permitted under this Agreement, to purchase the amount of Firm Securities agreed by such Underwriter to be purchased hereunder) be under any liability to the Company (except to the extent provided in Section 6 hereof). -32- (c) Postponement of Closing. If Firm Securities to which a default relates are to be purchased by the remaining non-defaulting Underwriters or substituted Underwriters are required hereby by any other party or agree to take up all parties, the Representatives or part of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such the First Closing Date for a period of not more than five (5) full seven business days in order that the Company may effect whatever necessary changes may thereby be made necessary in the Registration Statement or Statement, in the Prospectus, Time of Sale Disclosure Package, in the Prospectus or in any other documents or documents, as well as any other arrangements, and may be effected. As used herein, the Company agrees promptly term "Underwriter" includes any person substituted for an Underwriter under this Section 8. (d) No Relief from Liability. No action taken pursuant to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained Section 8 shall relieve any defaulting Underwriter from liability, if any, in respect of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect. such default.
View More
Substitution of Underwriters.
(a) Obligation to Purchase Under Certain Circumstances. If any Underwriter or Underwriters shall
default fail to take up and pay for the amount of Firm Securities agreed by such Underwriter or Underwriters to be purchased hereunder, upon tender of such Firm Securities in
its or their obligations to purchase shares of Stock hereunder on any Closing Date accordance with the terms hereof, and the
amount of Firm Securities not purchased does not aggregate
number more than 10% of
shares which such th...e total amount of Firm Securities 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 Securities that the withdrawing or defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. purchase. -32- (b) Termination Under Certain Circumstances. If any Underwriter or Underwriters shall so default fail to take up and pay for the amount of Firm Securities agreed by such Underwriter or Underwriters to be purchased hereunder, upon tender of such Firm Securities in accordance with the terms hereof, and the aggregate number amount of shares with respect to which such default or defaults occur is Firm Securities not purchased aggregates more than ten percent (10%) 10% of the total number amount of shares to be purchased by all Underwriters on such Closing Date Firm Securities set forth in Schedule I hereto, and arrangements satisfactory to the Representatives and the Company you for the purchase of such shares Firm Securities by other persons are not made within forty-eight (48) 36 hours after such default, thereafter, this Agreement shall terminate. terminate automatically. In the event of any such termination, the Company shall not be under any liability to any Underwriter (except to the extent provided in Section 4(g) and Section 6 hereof), nor shall any Underwriter (other than an Underwriter who shall have failed, otherwise than for some reason permitted under this Agreement, to purchase the amount of Firm Securities agreed by such Underwriter to be purchased hereunder) be under any liability to the Company (except to the extent provided in Section 6 hereof). (c) Postponement of Closing. If Firm Securities to which a default relates are to be purchased by the remaining non-defaulting Underwriters or substituted Underwriters are required hereby by any other party or agree to take up all parties, the Representatives or part of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such the First Closing Date for a period of not more than five (5) full seven business days in order that the Company may effect whatever necessary changes may thereby be made necessary in the Registration Statement or Statement, in the Prospectus, Time of Sale Disclosure Package, in the Prospectus or in any other documents or documents, as well as any other arrangements, and may be effected. As used herein, the Company agrees promptly term "Underwriter" includes any person substituted for an Underwriter under this Section 8. (d) No Relief from Liability. No action taken pursuant to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained Section 8 shall relieve any defaulting Underwriter from liability, if any, in respect of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect. such default.
View More
Substitution of Underwriters.
If any one or more of the Underwriters shall fail or refuse to purchase any of the Firm Shares that it or they have agreed to purchase hereunder, and the aggregate number of Firm Shares that such defaulting Underwriter or Underwriters agreed but failed or refused to purchase is not more than one-tenth of the aggregate number of Firm Shares, the other Underwriters shall be obligated, severally and not jointly, to purchase the Firm Shares that such defaulting Underwriter or Underwriters agreed but... failed or refused to purchase, in the proportions which the number of Firm Shares that they have respectively agreed to purchase pursuant to Section 1 bears to the aggregate number of Firm Shares which all such non-defaulting Underwriters have so agreed to purchase, or in such other proportions as the Representative may specify; provided that in no event shall the maximum number of Firm Shares that any Underwriter has become obligated to purchase pursuant to Section 1 be increased pursuant to this Section 11 by more than one-ninth of such number of Firm Shares without the prior written consent of such Underwriter. In any such case either the Representative or the Company shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement and the Prospectus or in any other documents or arrangements may be effected. If any Underwriter or Underwriters shall default in its fail or their obligations refuse to purchase shares of Stock any Firm Shares that it or they agreed to purchase hereunder on any Closing Date and the aggregate number of shares Firm Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase does not exceed ten percent (10%) exceeds one-tenth of the total number of shares to be purchased by all Underwriters on such Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date Firm Shares and arrangements satisfactory to the Representatives Representative and the Company for the purchase of such shares by other persons Firm Shares are not made within forty-eight (48) 48 hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be will terminate without liability on the part of any non-defaulting Underwriter Underwriter, the Company or the Company, Selling Stockholders for the purchase or sale of any Shares under this Agreement. Any action taken pursuant to this Section 11 shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement. 21 12. No Fiduciary Relationship. Notwithstanding any preexisting relationship, advisory or otherwise, between the parties or any oral representations or assurances previously or subsequently made by the Underwriters, the Company and each Selling Stockholder acknowledges and agrees that (i) the purchase and sale of the Shares pursuant to this Agreement (including the determination of the terms of the offering of the Shares) is an arm's-length commercial transaction between the Company and the Selling Stockholders, on the one hand, and the several Underwriters, on the other hand, (ii) in connection therewith and with the process leading to such transaction, each Underwriter is acting solely as a principal and not the agent or fiduciary of the Company or any Selling Stockholder, (iii) no Underwriter has assumed an advisory or fiduciary responsibility in favor of the Company or any Selling Stockholder with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company or any such Selling Stockholder on other matters) or any other obligation to the Company or any Selling Stockholder except that the representations, warranties, covenants, indemnities, agreements and other statements obligations expressly set forth in Section 2, this Agreement, (iv) the obligations Underwriters and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Company or any Selling Stockholder and have no obligation to disclose or account to the Company or any Selling Stockholder for any of such differing interests, and (v) the Company and each Selling Stockholder has consulted its own legal, tax, accounting and financial advisors to the extent it deemed appropriate. The Company and each Selling Stockholder hereby agrees that it will not claim that the Underwriters, or any of them, have rendered advisory services of any nature or respect, or owe a fiduciary or similar duty to the Company or any Selling Stockholder, in connection with respect to expenses to be paid such transaction or reimbursed pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect. process leading thereto.
View More
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase
shares of Stock Firm Units hereunder on
the Closing Date or the Option Shares or Option Warrants on any
Option Closing Date and the aggregate number of
shares Firm Units or Option Shares or Option Warrants which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of
shares Firm Units or Option Shares or Option Warrants to be purchase
...d by all Underwriters on such Closing Date or Option Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares Firm Units or Option Shares or Option Warrants, respectively, which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date or Option Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares Firm Units with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares Firm Units to be purchased by all Underwriters on such Closing Date or is more than ten percent (10%) of the total number of Option Shares or Option Warrants on such Option Closing Date and arrangements satisfactory to the Representatives remaining Underwriters and the Company for the purchase of such shares Firm Units or Option Shares or Option Warrants by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock Firm Units or Option Shares or Option Warrants of a defaulting Underwriter or Underwriters on such Closing Date or Option Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date or Option Closing Date for a period of not more than five (5) full business days Business Days in order that to permit the Company may to effect whatever changes may thereby be made necessary in the Registration Statement or Statement, the Final Prospectus, or in any other documents or arrangements, which may thereby be made necessary, and the Company agrees to promptly to file any amendments to the Registration Statement or supplements to the final Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares Firm Units or Option Shares or Option Warrants to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the any other Underwriters Underwriter for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter Underwriters or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 Section 5(a)(viii) and 9 and the provisions of Section 7 and Sections 11 9 through 21, 17, inclusive, shall not terminate and shall remain in full force and effect. 25 11. Notices. All notices and communications hereunder shall be in writing and mailed or delivered or by telephone, electronic mail or telegraph if subsequently confirmed in writing, (a) if to the Representative, WallachBeth Capital, LLC Harborside Financial Center Plaza 5, 185 Hudson Street, Suite 1410 Jersey City, New Jersey 07311, Attention: Kenneth Bantum, with a copy (which shall not constitute notice) to Carmel, Milazzo & Feil LLP, 55 West 39th Street, 18th Floor, New York, NY 10018, Attention: Ross Carmel, and (b) if to the Company, to BioAffinity Technologies, Inc., 22211 W Interstate 10, Suite 1206, San Antonio, Texas 78257, Attention Ms. Maria Zannes, Chief Executive Officer, with a copy (which shall not constitute notice) to Wilhelm E. Liebmann, Esq. Dykema Gossett PLLC, 112 E. Pecan Street, Suite 1800, San Antonio, Texas 78205.
View More
Substitution of Underwriters. If any Underwriter
or Underwriters shall default defaults in its
or their obligations obligation to purchase
shares the principal amount of
Stock hereunder on any Closing Date and the
aggregate number of shares Notes which
such defaulting Underwriter or Underwriters it has agreed
but failed to purchase
does under this Agreement (the "Defaulted Notes"), the non-defaulting Underwriters will be obligated to purchase (in the respective proportions which the principal amount of the 29 Notes set forth... opposite the name of each non-defaulting Underwriter in Schedule I hereto bears to the total principal amount of the Notes less the principal amount of the Defaulted Notes) the principal amount of the Defaulted Notes; except that the non-defaulting Underwriters will not exceed ten percent (10%) be obligated to purchase any of the Notes if the total principal amount of the Defaulted Notes exceeds 9.09% of the total number principal amount of shares to be purchased by all the Notes, and any non-defaulting Underwriters on such Closing Date, the other Underwriters shall will not be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) 110% of the total number principal amount of shares to be purchased by all Underwriters on such Closing Date the Notes set forth opposite its name in Schedule I hereto. If the foregoing maximums are exceeded, the non-defaulting Underwriters, and arrangements any other underwriter satisfactory to the Representatives and who so agrees, will have the Company for right, but will not be obligated, to purchase (in such proportions as may be agreed upon among them) all of the Defaulted Notes. If the non-defaulting Underwriters or the other underwriters satisfactory to the Underwriters do not elect to purchase of such shares by other persons are not made the Defaulted Notes within forty-eight (48) 36 hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be will terminate without liability on the part of any non-defaulting Underwriter or the Company, except for the indemnity and contribution agreements of the Company and the Underwriters contained in Section 7 hereof. As used in this Agreement, the term "Underwriter" includes any person substituted for an Underwriter pursuant to this Section 8. If the non-defaulting Underwriters or the other underwriters satisfactory to the Representatives are obligated or agree to purchase the Defaulted Notes of a defaulting Underwriter, the Representatives may postpone the Closing Date for up to seven full Business Days in order that the representations, warranties, covenants, indemnities, agreements and Company may effect any changes that may be necessary in the Registration Statement, the Disclosure Package or the Prospectus or in any other statements set forth in Section 2, the obligations with respect to expenses to be paid document or reimbursed pursuant to Sections 5 and 9 agreement, and the provisions Company agrees to file promptly any amendments or any supplements to the Registration Statement, the Disclosure Package or the Prospectus which, in the opinion of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect. the Representatives, may thereby be made necessary. Nothing contained herein will relieve a defaulting Underwriter of any liability it may have for damages caused by its default.
View More
