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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Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase
shares of Stock Shares and/or Warrants hereunder on
any the Closing Date and the aggregate number of
shares Shares and Warrants which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of
shares Shares and/or Warrants to be purchased by all Underwriters on such Closing Date, the other Underwriters shall be obligated severally, in pr
...oportion to their respective commitments hereunder, to purchase the shares Shares and/or Warrants which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. Date If any Underwriter or Underwriters shall so default and the aggregate number of shares Shares and/or Warrants with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares Shares and/or Warrants to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the Representatives remaining Underwriters and the Company for the purchase of such shares Shares and/or 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 Shares and/or Warrants of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, 12, (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 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 Shares and/or 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 2 and 9 3 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. 26 11. Notices. Except as otherwise provided herein, all communications hereunder shall be in writing and, if to the Representative, shall be mailed, delivered or telecopied to Roth Capital Partners, LLC, 800 San Clemente Drive, Suite 400, Newport Beach, CA 92660, telecopy number: (949) 720-7227, Attention: Managing Director; and if to the Company, shall be mailed, delivered or telecopied to it at 833 W. South Boulder Road, Louisville, CO 80027, telecopy number: 303-648-5464, Attention: General Counsel; or to such other address as the person to be notified may have requested in writing. Any party to this Agreement may change such address for notices by sending to the parties to this Agreement written notice of a new address for such purpose. Such communications shall be deemed given and effective on the earliest of: (a) the date of transmission, if such notice or communication is delivered via telecopy at or prior to 5:30 p.m. (New York City time) on a Trading Day; (b) the next Trading Day after the date of transmission, if such notice or communication is delivered via telecopy on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day; (c) the second (2nd) Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service; or (d) upon actual receipt by the party to whom such notice is required to be given.
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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 the total amount of Se...curities to be purchased on such date, 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. -30- (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 Securities to be purchased by all Underwriters on such Closing Date date, 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 the remaining Securities to which a default relates are to be purchased by the 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 Closing Date applicable closing 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.
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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 Shares agreed by such Underwriter or Underwriters to be purchased hereunder, upon tender of such Shares in
its or their obligations to purchase shares of Stock hereunder on any Closing Date accordance with the terms hereof, and the
amount of Shares not purchased does not aggregate
number more than 10% of
shares which such the total amount of Shares se...t forth in Schedule I hereto, the remaining Underwriters shall be obligated to take up and pay for (in proportion to their respective underwriting obligations hereunder as set forth in Schedule I hereto except as may otherwise be determined by the Representative) the Firm Shares that the withdrawing or defaulting 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 Shares agreed by such Underwriter or Underwriters to be purchased hereunder, upon tender of such Firm Shares in accordance with the terms hereof, and the aggregate number amount of shares with respect to which such default or defaults occur is Shares 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 Shares set forth in Schedule I hereto, and arrangements satisfactory to the Representatives and the Company Representative for the purchase of such shares Shares by other persons are not made within forty-eight (48) 36 hours after thereafter, the Company or the Representative will have the right, by written notice given within the next 36-hour period to the parties to this Agreement, to terminate this Agreement. In the event of any such default, 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 shall terminate. Agreement, to purchase the amount of Shares agreed by such Underwriter to be purchased hereunder) be under any liability to the Company (except to the extent provided in Section 6 hereof). (c) Postponement of Closing. If 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 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. (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 such default. 24 9. Termination. (a) Right to Terminate. The Representative, as representative of the Underwriters, shall have the right to terminate this Agreement by giving notice as hereinafter specified at any time at or prior to the First Closing Date, and the option referred to in Section 3(b), if exercised, may be cancelled at any time prior to the Second Closing Date, if (i) the Company shall have failed, refused or been unable, at or prior to such Closing Date, to perform any agreement on its part to be performed hereunder, (ii) any other condition of the Underwriters' obligations hereunder is not fulfilled, (iii) trading on The NASDAQ Stock Market or the New York Stock Exchange shall have been wholly 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 Stock Market or New York Stock Exchange, by such Exchange or by order of the Commission or any other Underwriters Governmental Authority, (v) a banking moratorium shall have been declared by federal or 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 the Representative's judgment, is material and adverse and makes it impractical or inadvisable to proceed with the completion of the sale of and payment for damages occasioned by its default hereunder. the 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(g) and Sections 11 through 21, inclusive, Section 6 hereof shall not at all times be effective. (b) Notice of Termination. If the Representative elects to terminate and this Agreement as provided in this Section, the Representative shall remain in full force and effect. promptly notify the Company by telephone, confirmed by letter.
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Substitution of Underwriters. If any Underwriter or Underwriters
shall default in
its or their obligations to purchase
shares of Stock Notes hereunder
on any Closing Date and the aggregate
number principal amount of
shares which the Notes that such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed
ten percent (10%) 10% of the total
number principal amount of
shares the Notes, the Representatives may make arrangements satisfactory to
be purchased the Company for the purchase of such Notes by
... all Underwriters on other persons, including any of the Underwriters, but if no such arrangements are made by the Closing Date, the other non-defaulting Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares which Notes that such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. purchase. If any Underwriter or Underwriters shall so default and the aggregate number principal amount of shares the Notes with respect to which such default or defaults occur is more than ten percent (10%) exceeds 10% of the total number principal amount of shares to be purchased by all Underwriters on such Closing Date the Notes and arrangements satisfactory to the Representatives and the Company for the purchase of such shares Notes by other persons are not made within forty-eight (48) 36 hours 13 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 the representations, warranties, covenants, indemnities, agreements and other statements set forth as provided in Section 2, 7. As used in this Agreement, 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. term "Underwriter" includes any person substituted for an Underwriter under this Section. Nothing herein will relieve a defaulting Underwriter from liability for its default.
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Substitution of Underwriters. If any Underwriter or Underwriters
shall default in
its or their obligations to purchase
shares of Stock Notes hereunder
on any Closing Date and the aggregate
number principal amount of
shares which the Notes that such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed
ten percent (10%) 10% of the total
number principal amount of
shares the Notes, the Representatives may make arrangements satisfactory to
be purchased the Company for the purchase of such Notes by
... all Underwriters on other persons, including any of the Underwriters, but if no such arrangements are made by the Closing Date, the other non-defaulting Underwriters shall be obligated severally, in proportion to their respective commitments commitments, hereunder, to purchase the shares which Notes that such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. purchase. If any Underwriter or Underwriters shall so default and the aggregate number principal amount of shares the Notes with respect to which such default or defaults occur is more than ten percent (10%) exceeds 10% of the total number principal amount of shares to be purchased by all Underwriters on such Closing Date the Notes and arrangements satisfactory to the Representatives and the Company for the purchase of such shares Notes by other persons are not made 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 that the representations, warranties, covenants, indemnities, agreements and other statements set forth as provided in Section 2, 7. As used in this Agreement, 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. term "Underwriter" includes any 15 person substituted for an Underwriter under this Section. Nothing herein will relieve a defaulting Underwriter from liability for its 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 to purchase
shares any of
Stock hereunder on any Closing Date the Firm Shares that it or they have agreed to purchase hereunder, and the aggregate number of
shares 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, to purch...ase the 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 that 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 which any Underwriter has become obligated to purchase does not exceed ten percent (10%) pursuant to Section 1 be increased pursuant to this Section 8 by more than one-ninth of the total number of shares Firm Shares agreed to be purchased by all Underwriters on such Closing Date, Underwriter without the other prior written consent of such Underwriter. If any Underwriter or Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, fail or refuse to purchase any Firm Shares and the shares aggregate number of Firm Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and exceeds one-tenth of 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 Company and the Company Representative 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 Representative 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 the part of any non-defaulting 8, purchases Shares that a 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 agreed but failed 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. purchase.
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Substitution of Underwriters.
If one of the Underwriters shall fail or refuse at the First Delivery Date to purchase any of the Shares which it has agreed to purchase hereunder, and the aggregate principal amount of Shares which such defaulting Underwriter agreed but failed or refused to purchase is not more than one-tenth of the aggregate principal amount of Shares, the other Underwriter shall be obligated to purchase the Shares which such defaulting Underwriter agreed but failed or refused to purchase, in the proportions w...hich the number of Shares which they have respectively agreed to purchase pursuant to Section 2 hereof bears to the aggregate number of Shares which such non-defaulting Underwriter has so agreed to purchase, or in such other proportions as such non-defaulting Underwriter may specify; provided that in no event shall the maximum number of Shares which any Underwriter has become obligated to purchase pursuant to Section 2 hereof be increased pursuant to this Section 10 by more than one-ninth of the number of Shares agreed to be purchased by such Underwriter without the prior written consent of such Underwriter. If any Underwriter shall fail or Underwriters shall default in its or their obligations refuse at the First Delivery Date to purchase shares of Stock hereunder on any Closing Date Shares and the aggregate number of shares 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%) principal amount of the total number of shares to be purchased by all Underwriters on such Closing Date Shares and arrangements satisfactory to the Representatives non-defaulting Underwriter and the Company for the purchase of such shares by other persons 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 the shares of Stock of a defaulting non-defaulting Underwriter or the Company for the purchase or sale of any Shares under this Agreement. In any such case either the Underwriters on such Closing Date as provided in this Section 10, (i) or the Company shall have the right to postpone such Closing Date the First Delivery Date, 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 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 effected. Any action 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 not relieve the defaulting Underwriter from liability on the part in respect of any non-defaulting default of such 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. under this Agreement.
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Substitution of Underwriters. If any Underwriter or Underwriters
shall default in
its or their obligations to purchase
shares of Stock Notes hereunder
on any Closing Date and the aggregate
number principal amount of
shares which the Notes that such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed
ten percent (10%) 10% of the total
number principal amount of
shares the Notes, the Representatives may make arrangements satisfactory to
be purchased the Company for the purchase of such Notes by
... all Underwriters on other persons, including any of the Underwriters, but if no such arrangements are made by the Closing Date, the other non-defaulting Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares which Notes that such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. purchase. If any Underwriter or Underwriters shall so default and the aggregate number principal amount of shares the Notes with respect to which such default or defaults occur is more than ten percent (10%) exceeds 10% of the total number principal amount of shares to be purchased by all Underwriters on such Closing Date the Notes and arrangements satisfactory to the Representatives and the Company for the purchase of such shares Notes by other persons are not made 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 that the representations, warranties, covenants, indemnities, agreements and other statements set forth as provided in Section 2, 7. As used in this Agreement, 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. term "Underwriter" includes any person substituted for an Underwriter under this Section. Nothing herein will relieve a defaulting Underwriter from liability for its default.
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Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase
shares of Stock Public Units 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 Units 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 Units 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 Units with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares Units to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the Representatives Representative and the Company for the purchase of such shares Units 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 Public Units 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, necessary and (ii) the respective numbers of shares Units 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. 27 11. RIGHT OF FIRST REFUSAL. Upon the closing of the Offering, once the Company has focused on a specific target for the Business Combination and completed its initial due diligence on such target, the Company shall offer to engage Cowen as a financial advisor in connection with the Business Combination, provided, however, that Cowen may decline in writing such engagement in its sole and absolute discretion at such time, and Cowen shall be deemed to have declined such engagement if it does not advise the Company in writing that it wishes to accept such engagement within five days after receipt of notice of such offer. The terms of such engagement shall be set forth in a separate agreement between the Company and Cowen and contain terms that are customary to investment banks for similar transactions, including compliance with FINRA Rule 5110(f)(2)(E) to the extent applicable, and are mutually agreed to by the Company and Cowen, taking into account the extent of advice and effort provided by Cowen in connection with this target for the Business Combination, including, without limitation, the size of the transaction and whether Cowen sourced the counterparty for the Business Combination.
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Substitution of Underwriters. If any Underwriter
or defaults in its obligation to purchase the number of Securities which it has agreed to purchase under this Agreement, the non-defaulting Underwriters shall
default in its or their obligations be obligated to purchase
shares of Stock hereunder on any Closing Date and (in the
aggregate respective proportions which the number of
shares Securities set forth opposite the name of each non-defaulting Underwriter in Schedule A hereto bears to the total number of Securities set fort...h opposite the names of all the non-defaulting Underwriters in Schedule A hereto) the Securities which such the defaulting Underwriter agreed but failed to purchase (the "Default Securities"); except that the non-defaulting Underwriters shall not be obligated to purchase any of the Securities if the total number of Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) exceeds 10% of the total number of shares Securities, and any non-defaulting Underwriter shall not be obligated to purchase more than 110% of the number of Securities set forth opposite its name in Schedule A attached hereto purchasable by it pursuant to the terms of Section 2 hereof. If the foregoing maximums are exceeded, the non-defaulting Underwriters, and any other underwriters satisfactory to the Underwriters who so agree, shall have the right, but shall not be purchased by obligated, to purchase (in such proportions as may be agreed upon among them) all the Default Securities on the terms contained herein. If the non-defaulting Underwriters on such Closing Date, or the other underwriters satisfactory to the Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, do not elect 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 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, Default Securities, 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 terminate without liability on the part of any non-defaulting Underwriter or the Company, Company except that for the representations, warranties, covenants, indemnities, agreements payment of expenses to be borne by the Company and other statements set forth the Underwriters as provided in Section 2, 4 hereof and the obligations indemnity and 24 contribution agreements of the Company and the Underwriters contained in Section 6 and Section 7 hereof. Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have for damages caused by its default. If the other underwriters satisfactory to the Underwriters are obligated or agree to purchase the Securities of a defaulting Underwriter, either the Underwriters or the Company may postpone the Closing Time for up to five full SEC Business Days in order to effect any changes that may be necessary in the Registration Statement, the General Disclosure Package or the Prospectus or in any other document or agreement, and to file promptly any amendments or any supplements to the Registration Statement or the General Disclosure Package or the Prospectus which in the Underwriters' opinion may thereby be made necessary. The term "Underwriter" as used in this Agreement shall include any party substituted under this Section 10 with like effect as if it had originally been a party to this Agreement 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. Securities.
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