This page contains Substitution of Underwriters 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.
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.
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Variations of a "Substitution of Underwriters" Clause from Business Contracts
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 Securities, agreed by such Underwriter or Underwriters to be purchased hereunder, upon tender of such 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 Securities, as applicable, not purchased does not aggregate
number to more than 10% of
shares which s...uch the total amount of Shares, comprised of the Securities underlying the Pre-Funded Warrants, 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 Securities, as applicable, 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 Securities, as applicable, agreed by such Underwriter or Underwriters to be purchased hereunder, upon tender of such Securities, as applicable, in accordance with the terms hereof, and the aggregate number amount of shares with respect 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 Securities set forth in 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. In the event of any such termination, the Company shall not have any liability to any Underwriter (except to the extent provided in Sections 4(a)(vii) and 6 hereof) nor shall any Underwriter (other than an Underwriter who shall have failed, otherwise than for some reason permitted under this Agreement, to purchase the amount of 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). 29 (c) Postponement of Closing. If Firm Shares 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 Statement, the Time of Sale Disclosure Package, the Prospectus or 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.
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Substitution of Underwriters. If any
Underwriter one or
more of the Underwriters shall
default in its fail or
their obligations refuse at the Closing Date to purchase
shares any of
Stock hereunder on any Closing Date the Securities which it or they have agreed to purchase hereunder, and the aggregate
number principal amount of
shares Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase
does is not
exceed ten percent (10%) more than one-tenth of the
total number aggregate princ...ipal amount of shares to be purchased by all Underwriters on such Closing Date, Securities, the other Underwriters shall be obligated obligated, severally, in proportion to their respective commitments hereunder, to purchase the shares Securities which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase, in the proportions which the principal amount of Securities which they have respectively agreed to purchase on pursuant to Section 1 hereof bears to the aggregate principal amount of Securities which all such Closing Date. non-defaulting Underwriters have so agreed to purchase, or in such other proportions as such non-defaulting Underwriters may specify; provided that in no event shall the maximum principal amount of Securities which any Underwriter has become obligated to purchase pursuant to Section 1 hereof be increased pursuant to this Section 8 by more than one-ninth of the principal amount of Securities agreed to be purchased by such Underwriter without the prior written consent of such Underwriter. If any Underwriter or Underwriters shall so default fail or refuse at the Closing Date to purchase any Securities and the aggregate number principal amount of shares with respect to Securities which such default defaulting Underwriter or defaults occur is more than ten percent (10%) Underwriters agreed but failed or refused to purchase exceeds one-tenth of the total number aggregate principal amount of shares to be purchased by all Underwriters on such Closing Date the Securities and arrangements satisfactory to the Representatives any non-defaulting Underwriter and the Company for the purchase of such shares by other persons Securities are not made within forty-eight (48) 48 hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be will terminate without liability on the part of any non-defaulting Underwriter or the Company, except Company for the purchase or sale of any Securities under this Agreement. In any such case either the Underwriters or the Company shall have the right to postpone the Closing Date, 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 documents or arrangements may be effected. Any action taken pursuant to this Section 8 shall not relieve any defaulting Underwriter from liability in Section 2, respect of any default of such Underwriter under this Agreement. 22 9. Termination. Until the obligations with respect Closing Date, this Agreement may be terminated by the Representative on behalf of the Underwriters by giving notice as hereinafter provided to expenses the Company if (i) the Company will have failed, refused or been unable, at or prior to the Closing Date, to perform any agreement on its part to be paid performed hereunder or reimbursed (ii) any condition to the Underwriters' obligations hereunder is not fulfilled at or prior to the Closing Date. Any termination of this Agreement pursuant to this Section 9 will be without liability on the part of the Company or any Underwriter, except as otherwise provided in Sections 5 4(l), 4(m) 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. hereof.
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Substitution of Underwriters. If any
Underwriter one or
more of the Underwriters shall
default in its fail or
their obligations refuse at the Closing Date to purchase
shares any of
Stock hereunder on any Closing Date the Securities which it or they have agreed to purchase hereunder, and the aggregate
number principal amount of
shares Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase
does is not
exceed ten percent (10%) more than one-tenth of the
total number aggregate princ...ipal amount of shares Securities to be purchased by all Underwriters on such Closing Date, date, the other Underwriters shall be obligated obligated, severally, in proportion to their respective commitments hereunder, to purchase the shares Securities which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such Closing Date. date, in the same proportions as the principal amount of Securities, which they have respectively agreed to purchase pursuant to Section 1 hereof, bears to the total aggregate principal amount of Securities which all such non-defaulting Underwriters have so agreed to purchase, or in such other proportions as such non-defaulting Underwriters may specify; provided that in no event shall the maximum principal amount of Securities which any Underwriter has become obligated to purchase pursuant to Section 1 hereof be increased pursuant to this Section 9 by more than one-ninth of the principal amount of Securities agreed to be purchased by such Underwriter without the prior written consent of such Underwriter. If any Underwriter or Underwriters shall so default fail or refuse at the Closing Date to purchase any Securities and the aggregate number principal amount of shares with respect to Securities which such default defaulting Underwriter or defaults occur is more than ten percent (10%) Underwriters agreed but failed or refused to purchase exceeds one-tenth of the total number aggregate principal amount of shares the Securities to be purchased by all Underwriters on such Closing Date date and arrangements satisfactory to the Representatives any non-defaulting Underwriter and the Company for the purchase of such shares by other persons Securities are not made within forty-eight (48) 48 hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be will terminate without liability on the part of any non-defaulting Underwriter or the Company, except Company for the purchase or sale of any Securities under this Agreement. In any such case either the Underwriters or the Company shall have the right to postpone the Closing Date, 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 documents or arrangements may be effected. Any action taken pursuant to this Section 9 shall not relieve any defaulting Underwriter from liability in Section 2, respect of any default of such Underwriter under this Agreement. 22 10. Termination. Until the obligations with respect Closing Date, this Agreement may be terminated by the Representative on behalf of the Underwriters by giving notice as hereinafter provided to expenses the Company if (i) the Company will have failed, refused or been unable, at or prior to the Closing Date, to perform any agreement required on its part to be paid performed hereunder or reimbursed (ii) any condition to the Underwriters' obligations hereunder is not fulfilled at or prior to the Closing Date. Any termination of this Agreement pursuant to this Section 10 will be without liability on the part of the Company or any Underwriter, except as otherwise provided in Sections 5 4(j), 4(k) 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. 8 hereof.
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Substitution of Underwriters. If any
Underwriter one or
more of the Underwriters shall
fail or refuse at the Delivery Date to purchase and pay for any of the Notes which it has or they have agreed to purchase hereunder, and such failure to purchase shall constitute a default in
the performance of its or their obligations
under this Agreement, the remaining Underwriters shall be obligated severally to
purchase shares take up and pay for (in the respective proportions which the principal amount of
Stock hereunder Notes set for...th opposite their names on any Closing Date and Schedule I hereto bears to the aggregate number principal amount of shares Notes set forth opposite the names of all the remaining Underwriters) the Notes which such the defaulting Underwriter or Underwriters agreed but failed to purchase; provided, however, that in the event that the aggregate principal amount of Notes which the defaulting Underwriter or Underwriters agreed but failed to purchase does not shall exceed ten percent (10%) 10% of the total number aggregate principal amount of shares to be purchased by all Underwriters Notes set forth on such Closing Date, Schedule I hereto, the other remaining Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, have the right to purchase all, but shall not be under any obligation to purchase any, of the shares Notes and if such non-defaulting Underwriters do not purchase all the Notes this Agreement, and arrangements satisfactory to you and the Company for the purchase of all, but not less than all, the Notes which such the defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the Representatives and the Company for the purchase of such shares by other persons are not made within forty-eight (48) 24 hours after such default, this Agreement shall terminate. If will terminate without any liability to any non-defaulting Underwriter or the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of Company. In the shares of Stock event of a defaulting default by any Underwriter or Underwriters on such Closing Date as provided set forth in this Section 10, (i) 11, the Company Delivery Date shall have be postponed for such period, not exceeding five Business Days, as the right to postpone such Closing Date for a period of not more than five (5) full business days Representatives shall determine in order that the Company may effect whatever required changes may thereby be made necessary in to the Registration Statement or Statement, the Prospectus, Prospectus and the Final Prospectus (including by means of a free writing 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 arrangements 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 effected. Nothing contained in this Agreement. Nothing herein contained Agreement shall relieve any defaulting Underwriter of its liability liability, if any, to the Company or the other Underwriters and any non-defaulting 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 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.
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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 22 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 10 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 or the Company, except that Company for the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid purchase or reimbursed sale of any Shares under this Agreement. Any action taken pursuant to Sections 5 and 9 and the provisions of this Section 7 and Sections 11 through 21, inclusive, 10 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.
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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 10 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 17 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 or the Company, except that Company for the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid purchase or reimbursed sale of any Shares under this Agreement. Any action taken pursuant to Sections 5 and 9 and the provisions of this Section 7 and Sections 11 through 21, inclusive, 10 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.
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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 Shares which it or they have agreed to purchase hereunder, and the aggregate number of
shares Firm Shares 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 Underwr...iters on such Closing Date, Firm Shares, the other Underwriters shall be obligated obligated, severally, in proportion to their respective commitments hereunder, to purchase the shares Firm Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase, in the proportions as the number of Firm Shares set forth opposite the name of such Underwriter in Schedule I hereto 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 Representatives may specify; provided that in no event shall the maximum number of Firm Shares which any Underwriter has become obligated to purchase on pursuant to Section 1 be increased pursuant to this Section 8 by more than one-ninth of the number of Firm Shares agreed to be purchased by such Closing Date. Underwriter without the prior written consent of such Underwriter. If any Underwriter or Underwriters shall so default fail or refuse to purchase any Firm Shares and the aggregate number of shares with respect to Firm Shares 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 Shares and arrangements satisfactory to the Representatives Company and the Company Representatives 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 will terminate without liability on the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of any non-defaulting Underwriter, or the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date Company (except as provided in Section 4(l)) for the purchase or sale of any Shares under this Section 10, (i) Agreement). In any such case either the Representatives or the Company shall have the right to postpone such the Closing Date Time, but in no event for a period of not more longer than five (5) full business days seven days, in order that the Company may effect whatever changes may thereby be made necessary required changes, if any, in the Registration Statement or and in the Prospectus, Prospectus or in any other documents or arrangements, and arrangements may be effected. Any action taken pursuant to this Section 8 shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement. As used in this Agreement, 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 term "Underwriter" includes, for all purposes of this Agreement. Nothing herein contained shall relieve Agreement unless the context otherwise requires, 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 person not listed in Schedule I hereto that, pursuant to this Section 10 shall be without liability on 8, purchases Shares that a defaulting Underwriter agreed but failed to purchase. 30 9. Compliance with USA Patriot Act. In accordance with the part requirements of any non-defaulting Underwriter or the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company, except which information may include the name and address of their respective clients, as well as other information that will allow the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect Underwriters 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. properly identify their respective clients.
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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 Securities agreed by such Underwriter or Underwriters to be purchased hereunder, upon tender of such 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 Securities not purchased does not aggregate
number more than 10% of
shares which such the total amount ...of 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 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 Securities agreed by such Underwriter or Underwriters to be purchased hereunder, upon tender of such Securities in accordance with the terms hereof, and the aggregate number amount of shares with respect to which such default or defaults occur is 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 Securities set forth in Schedule I hereto, and arrangements satisfactory to the Representatives and the Company you for the purchase of such shares 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 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 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 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 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. -27- (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.
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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 Securities agreed by such Underwriter or Underwriters to be purchased hereunder, upon tender of such 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 Securities not purchased does not aggregate
number more than 10% of
shares which such the total amount ...of 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 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 Securities agreed by such Underwriter or Underwriters to be purchased hereunder, upon tender of such Securities in accordance with the terms hereof, and the aggregate number amount of shares with respect to which such default or defaults occur is 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 Securities set forth in Schedule I hereto, and arrangements satisfactory to the Representatives and the Company you for the purchase of such shares 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 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 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 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 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. -33- (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.
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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 Representatives 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 Representatives 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 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, except that Selling Stockholders for the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid purchase or reimbursed sale of any Shares under this Agreement. Any action taken pursuant to Sections 5 and 9 and the provisions of this Section 7 and Sections 11 through 21, inclusive, 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.
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