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 hereunder on
the Closing Date or any
Option Closing Date and the aggregate number of
shares Shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of
shares Shares to be purchased by all Underwriters on such
Closing Date or Option Closing Date, the other Underwriters shall be obligated severally, in p
...roportion to their respective commitments hereunder, to purchase the shares Shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date or Option Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares Shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares Shares to be purchased by all Underwriters on such Closing Date or Option Closing Date and arrangements satisfactory to the Representatives remaining Underwriters and the Company for the purchase of such shares 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 Shares of a defaulting Underwriter or Underwriters on such Closing Date or Option Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date or Option Closing Date for a period of not more than five (5) full business days 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 to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the any other Underwriters Underwriter for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter Underwriters or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 Section 5(a)(viii) and 9 and the provisions of Section 7 and Sections 11 9 through 21, 17, inclusive, shall not terminate and shall remain in full force and effect. 20 12. Notices. All notices and communications hereunder shall be in writing and mailed or delivered or by telephone or telegraph if subsequently confirmed in writing, (a) if to the Representative, Aegis Capital Corp., 810 Seventh Avenue, 18th Floor, New York, NY 10019, Attention: Global Equity Markets, with a copy to Aegis Capital Corp., 810 Seventh Avenue, 18th Floor, New York, NY 10019, Attention: Syndicate, and to Sichenzia Ross Ference LLP, 1185 Avenue of the Americas, 37th Floor, New York, NY 10036, Attention: Gregory Sichenzia, and (b) if to the Company, to the Company's agent for service as such agent's address appears on the cover page of the Registration Statement with a copy to Shepard, Mullin, Richter & Hampton LLP, 30 Rockefeller Plaza, New York, NY 10112-0015, Attention: Jeffrey Fessler.
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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 Firm 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 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 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 the Securities. 34 11. Postponement. In the event of any such default which does not result in a termination of this Agreement or, in the case of a Date of Delivery which is after the Closing Time, which does not result in a termination of the obligation of the Underwriters to be paid or reimbursed pursuant to Sections 5 and 9 purchase and the provisions Company to sell the relevant Option Securities, as the case may be, either the (a) Underwriters or (b) the Company shall have the right to postpone Closing Time or the relevant Date of Section 7 and Sections 11 through 21, inclusive, shall Delivery, as the case may be, for a period not terminate and shall remain exceeding seven days in full force and effect. order to effect any required changes in the Registration Statement or Prospectus or in any other documents or arrangements.
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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 I hereto bears to the total number of Securities set fort...h opposite the names of all the non-defaulting Underwriters in Schedule I hereto) the Securities which such the defaulting Underwriter agreed but failed to purchase; 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 Firm 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 I hereto purchasable by it pursuant to the terms of Section 4 hereof. If the foregoing maximums are exceeded, (i) the non-defaulting Underwriters, and any other underwriters satisfactory to the Representatives 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 Securities. If the non-defaulting Underwriters on such Closing Date, or the other Underwriters shall be obligated severally, in proportion underwriters satisfactory to their respective commitments hereunder, the Representatives do not elect to purchase the shares Securities 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) hours after such default, purchase, 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 and other statements set forth in Section 2, the obligations with respect to payment of expenses to be paid or reimbursed pursuant to Sections 5 and 9 borne by the Company and the provisions Underwriters as provided in Section 5 hereof and the indemnity and contribution agreements of the Company and the Underwriters contained in Section 7 8 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 Representatives are obligated or agree to purchase the Securities of a defaulting Underwriter, either the Representatives or the Company may postpone the First Closing Date for up to five full Business Days in order to effect any changes that may be necessary in the Registration Statement, the Time of Sale Disclosure Package or the Prospectus or in any other document or agreement, and Sections 11 through 21, inclusive, shall not terminate and shall remain to file promptly any amendments or any supplements to the Registration Statement or the Time of Sale Disclosure Package or the Prospectus which in full force and effect. the Representatives' opinion may thereby be made necessary.
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Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase
shares of Stock Securities hereunder on
the Closing Date or any
Option Closing Date and the aggregate number of
shares Securities which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of
shares Securities to be purchased by all Underwriters on such
Closing Date or Option Closing Date, the other Underwriters shall be obligated sev
...erally, in proportion to their respective commitments hereunder, to purchase the shares Securities which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date or Option Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares Securities with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares Securities to be purchased by all Underwriters on such Closing Date or Option Closing Date and arrangements satisfactory to the Representatives remaining Underwriters and the Company for the purchase of such shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock Securities of a defaulting Underwriter or Underwriters on such Closing Date or Option Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date or Option Closing Date for a period of not more than five (5) full business days in order that to permit the Company may to effect whatever changes may thereby be made necessary in the Registration Statement or Statement, the 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 Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares Securities 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, 2 and 3, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections Section 5 and 9 and the provisions of Section 5(a)(viii) and Section 7 and Sections 11 through 21, 19, inclusive, shall not terminate and shall remain in full force and effect. -24- 11. Notices. Except as otherwise provided herein, all communications hereunder shall be in writing and, (i) if to the Underwriters, shall be mailed, delivered or telecopied to Roth Capital Partners, LLC, 888 San Clemente Drive, Newport Beach, CA 92660, telecopy number: (949) 720-7227, Attention: Managing Director, and (ii) if to the Company, shall be mailed, delivered or telecopied to it at Ideal Power Inc., 4120 Freidrich Lane, Austin, TX 78744, telecopy number: (512) 264-1546, Attention: Tim Burns, Chief Financial Officer; with a copy (which shall not constitute notice) to DLA Piper LLP (US), 401 Congress Avenue, Suite 2500, Austin, TX 78701, telecopy number: (512) 457-7001, Attention: Paul E. Hurdlow, Esq., or in each case 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.
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Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase
shares of Stock Units, Shares and/or Warrants hereunder on
the Closing Date or any
Option Closing Date and the aggregate number of
shares Units, Shares and/or Warrants which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of
shares Units, Shares and/or Warrants to be purchased by all Underwriters on such
Closing Date or Option Cl
...osing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares Units, Shares and/or Warrants which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date or Option Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares Units, 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 Units, Shares and/or Warrants to be purchased by all Underwriters on such Closing Date or Option Closing Date and arrangements satisfactory to the Representatives remaining Underwriters and the Company for the purchase of such shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock Units, Shares and/or Warrants of a defaulting Underwriter or Underwriters on such Closing Date or Option Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date or Option Closing Date for a period of not more than five (5) full business days in order that to permit the Company may to effect whatever changes may thereby be made necessary in the Registration Statement or Statement, the 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 Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares Units, 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 non defaulting Underwriters or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, Sections 2 and 3, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections Section 5 and 9 and the provisions of Section 7 and Sections 11 through 21, 18, inclusive, shall not terminate and shall remain in full force and effect. 23 11. Notices. Except as otherwise provided herein, all communications hereunder shall be in writing and, if to the Underwriters, shall be mailed (including by electronic mail), delivered or faxed to Roth Capital Partners, LLC, 888 San Clemente Drive, Newport Beach, CA 92660, fax number: (949) 720-7227, e-mail: rothecm@roth.com, Attention: Managing Director; and if to the Company, shall be mailed, delivered or faxed to CRAiLAR Technologies, Inc., Suite 305, 4420 Chatterton Way, Victoria, British Columbia, Canada, V8X 5J2, fax number: (250) 658-8586, e-mail: ken.barker@crailar.com, Attention: Chief Executive Officer; or in each case 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.
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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 hereunder on
the Closing Date or any
Option Closing Date and the aggregate number of
shares Shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of
shares Shares to be purchased by all Underwriters on such
Closing Date or Option Closing Date, the other Underwriters shall be obligated severally, in p
...roportion to their respective commitments hereunder, to purchase the shares Shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date or Option Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares Shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares Shares to be purchased by all Underwriters on such Closing Date or Option Closing Date and arrangements satisfactory to the Representatives remaining Underwriters and the Company for the purchase of such shares 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 Shares of a defaulting Underwriter or Underwriters on such Closing Date or Option Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date or Option Closing Date for a period of not more than five (5) full business days 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 to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the any other Underwriters Underwriter for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter Underwriters or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 Section 5(a)(viii) and 9 and the provisions of Section 7 and Sections 11 9 through 21, 17, inclusive, shall not terminate and shall remain in full force and effect. 20 11. Notices. All notices and communications hereunder shall be in writing and mailed or delivered or by telephone or telegraph if subsequently confirmed in writing, (a) if to the Representative, Aegis Capital Corp., 810 Seventh Avenue, 18th Floor, New York, NY 10019, Attention: Global Equity Markets, with a copy to Aegis Capital Corp., 810 Seventh Avenue, 18th Floor, New York, NY 10019, Attention: Syndicate, and to Sichenzia Ross Ference LLP, 1185 Avenue of the Americas, 37th Floor, New York, NY 10036, Attention: Darrin M. Ocasio, and (b) if to the Company, to the Company's agent for service as such agent's address appears on the cover page of the Registration Statement with a copy to Dorsey & Whitney LLP, 111 South Main Street, Suite 2100, Salt Lake City, Utah, 84111, Attention: Nolan S. Taylor.
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Substitution of Underwriters. If any Underwriter
or Underwriters shall default in its
or their obligations obligation to purchase
shares of Stock the Bonds which it has agreed to purchase hereunder
on any Closing Date and the aggregate
number principal amount of
shares such Bonds which 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 Bonds, the non-defaulting Underwriters may make arrangements satisfactory to
be purc...hased the Company for the purchase of the aggregate principal amount of such Bonds by all Underwriters on other persons, including any of the non-defaulting 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 Bonds 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 Bonds 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 Bonds and arrangements satisfactory to the Representatives non-defaulting Underwriters and the Company for the purchase of such shares Bonds by other persons are not made within forty-eight (48) 36 hours after such default, this Agreement shall will terminate. If the remaining non-defaulting Underwriter or Underwriters or substituted Underwriters underwriter or underwriters are required hereby or agree to take up all or part of the shares Bonds of Stock of a the defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, 8, (i) the Company shall have the right to postpone such the Closing Date for a period of not more than five (5) full business days days, in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement Statement, Pricing Disclosure Package or the Prospectus, Prospectus or in any other documents or arrangements, and the Company agrees to 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 aggregate principal amount of shares to be purchased by Bonds which the remaining non-defaulting Underwriters or substituted Underwriters purchaser or purchasers shall thereafter be obligated to purchase 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 non-defaulting Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 8 shall be without liability on the part of any the non-defaulting Underwriter Underwriters or the Company, except that the other than as provided in Sections 7 and 10. 23 9. Survival of Indemnities, Representations, Warranties, etc. The respective indemnities, agreements, representations, warranties, covenants, indemnities, agreements warranties and other statements of the Company and the several Underwriters, as set forth in Section 2, the obligations with respect to expenses to be paid this Agreement or reimbursed made by or on behalf of them, respectively, pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and this Agreement, shall remain in full force and effect. effect, regardless of any investigation (or any statement as to the results thereof) made by or on behalf of any Underwriter or any controlling person of any Underwriter, or the Company, or any officer or director or controlling person of the Company, and shall survive delivery of and payment for the Bonds.
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Substitution of Underwriters. If any Underwriter
or Underwriters shall default in its
or their obligations obligation to purchase
shares of Stock hereunder on
any the Closing Date
the Shares and
the aggregate number of shares which such defaulting Underwriter or Underwriters Warrants agreed
but failed to purchase does not exceed ten percent (10%) of the total number of shares to be purchased
by all Underwriters hereunder on
such the Closing Date, the
other Underwriters Representative shall
be obligated severally, in proporti...on have the right, within thirty-six (36) hours thereafter, to their respective commitments hereunder, to purchase the shares which such defaulting Underwriter make arrangements for one 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 non-defaulting Underwriters, or any other underwriters reasonably satisfactory to the Representatives Company, to purchase such Shares and Warrants on the terms contained herein. If, however, the Representative shall not have completed such arrangements within such 36-hour period, then the Company shall be entitled to a further period of thirty-six (36) hours within which to procure another party or other parties satisfactory to the Underwriters to purchase such Shares and Warrants on such terms. If, after giving effect to any arrangements 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 Shares and Warrants of a defaulting Underwriter or Underwriters by the Representative and the Company as provided above, the aggregate number of Shares and Warrants which remains unpurchased on the Closing Date does not exceed one-eleventh (1/11) of the aggregate number of all the Shares and Warrants that all the Underwriters are obligated to purchase on such Closing Date as provided date, then the Company shall have the right to require each non-defaulting Underwriter to purchase the number of Shares and Warrants which such Underwriter agreed to purchase hereunder at such date and, in this Section 10, (i) addition, to require each non-defaulting Underwriter to purchase its pro rata share (based on the number of Shares and Warrants which such Underwriter agreed to purchase hereunder) of the Shares and Warrants of such defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing herein shall relieve a defaulting Underwriter from liability for its default. In any such case, either the Representative or the Company shall have the right to postpone such the Closing Date for a period of not more than five (5) full business seven (7) days in order that the Company may to effect whatever any necessary changes may thereby be made and arrangements (including any necessary in amendments or supplements to the Registration Statement or the Prospectus, Prospectus or in any other documents or arrangements, documents), and the Company agrees promptly to file promptly any amendments to the Registration Statement or supplements to the Prospectus which in the opinion of the Company and the Underwriters and their counsel may thereby be made necessary, necessary. If, after giving effect to any arrangements for the purchase of the Shares and (ii) Warrants of a defaulting Underwriter or Underwriters by the respective numbers Representative and the Company as provided above, the aggregate number of shares such Shares and Warrants which remains unpurchased exceeds 10% of the aggregate number of all the Shares and 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 other Underwriters for damages occasioned by its default hereunder. Any termination of at such date, then this Agreement pursuant to this Section 10 shall be terminate, without liability on the part of any non-defaulting Underwriter or to the Company, and without liability on the part of the Company, except that as provided in Sections 4(b), 5, 6 and 7. The provisions of this Section 8 shall not in any way affect the representations, warranties, covenants, indemnities, agreements and other statements set forth liability of any defaulting Underwriter to the Company or the nondefaulting Underwriters arising out of such default. The term "Underwriter" as used in this Agreement shall include any person substituted under this Section 2, the obligations 8 with like effect as if such person had originally been a party to this Agreement with respect to expenses to be paid or reimbursed pursuant to Sections 5 such Shares 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. Warrants.
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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 hereunder on
the Closing Date or any
Option Closing Date and the aggregate number of
shares Shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of
shares Shares to be purchased by all Underwriters on such
Closing Date or Option Closing Date, the other Underwriters shall be obligated severally, in p
...roportion to their respective commitments hereunder, to purchase the shares Shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date or Option Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares Shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares Shares to be purchased by all Underwriters on such Closing Date or Option Closing Date and arrangements reasonably satisfactory to the Representatives remaining Underwriters and the Company for the purchase of such shares Shares (or reduction of the number of such Shares to be sold hereunder and pursuant to the Registration Statement and the Final Prospectus, as applicable) 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 of a defaulting Underwriter or Underwriters on such Closing Date or Option Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date or Option Closing Date for a period of not more than five (5) full business days 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 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, Sections 2 and 3, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 Section 5, and the provisions of Section 5(h) and 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 Representatives, shall be mailed, delivered or facsimiled to (a) Roth Capital Partners, LLC, 800 San Clemente Drive, Suite 400, Newport Beach, CA 92660, facsimile number: (949) 720-7223, Attention: Bob Stephenson, Managing Director, and (b) Maxim Group LLC, 405 Lexington Ave., New York, NY 10174, facsimile number: (212) 895-3555, Attention: Ritesh Veera, Managing Director; and if to the Company, shall be mailed, delivered or facsimiled to it at 1590 Reed Road, Pennington, NJ 08534, facsimile number: (609) 730-0404, Attention: John Lawrence, General Counsel and Secretary; or in each case 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.
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Substitution of Underwriters. If any Underwriter
or Underwriters shall default in its
or their obligations obligation to purchase
shares of Stock hereunder on
any the Closing Date
the Shares and
the aggregate number of shares which such defaulting Underwriter or Underwriters Warrants agreed
but failed to purchase does not exceed ten percent (10%) of the total number of shares to be purchased
by all Underwriters hereunder, the Representative shall have the right, within 36 hours thereafter, to make arrangements for one or mor...e of the non-defaulting Underwriters, or any other underwriters, to purchase such Shares and Warrants on the terms contained herein. If, however, the Representative shall not have completed such Closing Date, arrangements within such 36-hour period, then the other Underwriters Company shall be obligated severally, in proportion entitled to their respective commitments hereunder, a further period of thirty-six hours within which to purchase the shares which such defaulting Underwriter procure another party 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 other parties satisfactory to the Representatives Underwriters to purchase such Shares and the Company Warrants on such terms. If, after giving effect to any arrangements 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 Shares and Warrants of a defaulting Underwriter or Underwriters by the Representative and the Company as provided above, the aggregate number of Shares and Warrants which remains unpurchased on such the Closing Date as provided does not exceed one-eleventh of the aggregate number of all the Shares and Warrants that all the Underwriters are obligated to purchase on the Closing Date, then the Company shall have the right to require each non-defaulting Underwriter to purchase the number of Shares and Warrants which such Underwriter agreed to purchase hereunder at such date and, in this Section 10, (i) addition, to require each non-defaulting Underwriter to purchase its pro rata share (based on the number of Shares and Warrants which such Underwriter agreed to purchase hereunder) of the Shares and Warrants of such defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing herein shall relieve a defaulting Underwriter from liability for its default. In any such case, either the Representative or the Company shall have the right to postpone such the Closing Date for a period of not more than five (5) full business seven days in order that the Company may to effect whatever any necessary changes may thereby be made and arrangements (including any necessary in amendments or supplements to the Registration Statement or the Prospectus, Prospectus or in any other documents or arrangements, documents), and the Company agrees promptly to file promptly any amendments to the Registration Statement or supplements to the Prospectus which in the opinion of the Company and the Underwriters and their counsel may thereby be made necessary, necessary. 27 If, after giving effect to any arrangements for the purchase of the Shares and (ii) Warrants of a defaulting Underwriter or Underwriters by the respective numbers Representative and the Company as provided above, the aggregate number of shares such Shares and Warrants which remains unpurchased exceeds 10% of the aggregate number of all the Shares and Warrants to be purchased by on 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 Closing Date, then this Agreement pursuant to this Section 10 shall be terminate, without liability on the part of any non-defaulting Underwriter or to the Company, and without liability on the part of the Company, except that the representations, warranties, covenants, indemnities, agreements provisions of Sections 4(b), 5, 6 and other statements set forth 7 shall at all times be effective and shall survive such termination. The provisions of this Section 9 shall not in any way affect the liability of any defaulting Underwriter to the Company or the nondefaulting Underwriters arising out of such default. The term "Underwriter" as used in this Agreement shall include any person substituted under this Section 2, the obligations 8 with like effect as if such person had originally been a party to this Agreement with respect to expenses to be paid or reimbursed pursuant to Sections 5 such Shares 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. Warrants.
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