This page contains Substitution of Underwriters clauses in business contracts and legal agreements. An example clause is provided at the top of the page, followed by clauses with minor variations. You can view the text differences by selecting the "Show Differences" option.
Substitution of Underwriters. If any Underwriter or Underwriters shall default in its or their obligations to purchase shares of Stock hereunder on any Closing Date and the aggregate number of shares which such defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the sh
...ares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date and arrangements satisfactory to the Representatives and the Company for the purchase of such shares by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect.
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Variations of a "Substitution of Underwriters" Clause from Business Contracts
Substitution of Underwriters. If any Underwriter
or Underwriters shall default defaults in its
or their obligations obligation to purchase
shares the principal amount of
Stock hereunder on any Closing Date and the
aggregate number of shares Notes which
such defaulting Underwriter or Underwriters it has agreed
but failed to purchase
does under this Agreement (the "Defaulted Notes"), the non-defaulting Underwriters will be obligated to purchase (in the respective proportions which the principal amount of the Notes set forth op...posite the name of each non-defaulting Underwriter in Schedule I hereto bears to the total principal amount of the Notes less the principal amount of the Defaulted Notes) the principal amount of the Defaulted Notes; except that the non-defaulting Underwriters will not exceed ten percent (10%) be obligated to purchase any of the Notes if the total principal amount of the Defaulted Notes exceeds 9.09% of the total number principal amount of shares to be purchased by all the Notes, and any non-defaulting Underwriters on such Closing Date, the other Underwriters shall will not be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) 110% of the total number principal amount of shares to be purchased by all Underwriters on such Closing Date the Notes set forth opposite its name in Schedule I hereto. If the foregoing maximums are exceeded, the non-defaulting Underwriters, and arrangements any other underwriter satisfactory to the Representatives and who so agrees, will have the Company for right, but will not be obligated, to purchase (in such proportions as may be agreed upon among them) all of the Defaulted Notes. If the non-defaulting Underwriters or the other underwriters satisfactory to the Underwriters do not elect to purchase of such shares by other persons are not made the Defaulted Notes within forty-eight (48) 36 hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be will terminate without liability on the part of any non-defaulting Underwriter or the Company, except for the indemnity and contribution agreements of the Company and the Underwriters contained in Section 7 hereof. As used in this Agreement, the term "Underwriter" includes any person substituted for an Underwriter pursuant to this Section 8. If the non-defaulting Underwriters or the other underwriters satisfactory to the Representatives are obligated or agree to purchase the Defaulted Notes of a defaulting Underwriter, the Representatives may postpone the Closing Date for up to seven full Business Days in order that the representations, warranties, covenants, indemnities, agreements and Company may effect any changes that may be necessary in the Registration Statement, the Disclosure Package or the Prospectus or in any other statements set forth in Section 2, the obligations with respect to expenses to be paid document or reimbursed pursuant to Sections 5 and 9 agreement, and the provisions Company agrees to file promptly any amendments or any supplements to the Registration Statement, the Disclosure Package or the Prospectus which, in the opinion of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect. the Representatives, may thereby be made necessary. Nothing contained herein will relieve a defaulting Underwriter of any liability it may have for damages caused by its default.
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Substitution of Underwriters.
If any one or more of the Underwriters shall fail or refuse to purchase any of the Firm Shares that it or they have agreed to purchase hereunder, and the aggregate number of Firm Shares that such defaulting Underwriter or Underwriters agreed but failed or refused to purchase is not more than one-tenth of the aggregate number of Firm Shares, the other Underwriters shall be obligated, severally and not jointly, to purchase the Firm Shares that such defaulting Underwriter or Underwriters agreed but... failed or refused to purchase, in the proportions which the number of Firm Shares that they have respectively agreed to purchase pursuant to Section 1 bears to the aggregate number of Firm Shares which all such non-defaulting Underwriters have so agreed to purchase, or in such other proportions as the Representatives may specify; provided that in no event shall the maximum number of Firm Shares that any Underwriter has become obligated to purchase pursuant to Section 1 be increased pursuant to this Section 11 by more than one-ninth of such number of Firm Shares without the prior written consent of such Underwriter. In any such case either the Representatives or the Company shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement and the Prospectus or in any other documents or arrangements may be effected. If any Underwriter or Underwriters shall default in its fail or their obligations refuse to purchase shares of Stock any Firm Shares that it or they agreed to purchase hereunder on any Closing Date and the aggregate number of shares Firm Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase does not exceed ten percent (10%) exceeds one-tenth of the total number of shares to be purchased by all Underwriters on such Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date Firm Shares and arrangements satisfactory to the Representatives and the Company for the purchase of such shares by other persons Firm Shares are not made within forty-eight (48) 48 hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be will terminate without liability on the part of any non-defaulting Underwriter Underwriter, the Selling Stockholder or the Company, Company for the purchase or sale of any Shares under this Agreement. Any action taken pursuant to this Section 11 shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement. 21 12. No Fiduciary Relationship. Notwithstanding any preexisting relationship, advisory or otherwise, between the parties or any oral representations or assurances previously or subsequently made by the Underwriters, the Company and the Selling Stockholder acknowledges and agrees that (i) the purchase and sale of the Shares pursuant to this Agreement (including the determination of the terms of the offering of the Shares) is an arm's-length commercial transaction between the Company and the Selling Stockholder, on the one hand, and the several Underwriters, on the other hand, (ii) in connection therewith and with the process leading to such transaction, each Underwriter is acting solely as a principal and not the agent or fiduciary of the Company or the Selling Stockholder, (iii) no Underwriter has assumed an advisory or fiduciary responsibility in favor of the Company or the Selling Stockholder with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company or the Selling Stockholder on other matters) or any other obligation to the Company or the Selling Stockholder except that the representations, warranties, covenants, indemnities, agreements and other statements obligations expressly set forth in Section 2, this Agreement, (iv) the obligations with respect Underwriters and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Company or the Selling Stockholder and have no obligation to expenses disclose or account to be paid the Company or reimbursed pursuant to Sections 5 the Selling Stockholder for any of such differing interests, and 9 (v) the Company and the provisions Selling Stockholder has consulted its own legal, tax, accounting and financial advisors to the extent it deemed appropriate. The Company and the Selling Stockholder hereby agrees that it will not claim that the Underwriters, or any of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain them, have rendered advisory services of any nature or respect, or owe a fiduciary or similar duty to the Company or the Selling Stockholder, in full force and effect. connection with such transaction or the process leading thereto.
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Substitution of Underwriters. If any Underwriter
or Underwriters shall default defaults in its
or their obligations obligation to purchase
shares the principal amount of
Stock hereunder on any Closing Date and the
aggregate number of shares Notes which
such defaulting Underwriter or Underwriters it has agreed
but failed to purchase
does under this Agreement (the "Defaulted Notes"), the non-defaulting Underwriters will be obligated to purchase (in the respective proportions which the principal amount of the Notes set forth op...posite the name of each non-defaulting Underwriter in Schedule I hereto bears to the total principal amount of the Notes less the principal amount of the Defaulted Notes) the principal amount of the Defaulted Notes; except that the non-defaulting Underwriters will not exceed ten percent (10%) be obligated to purchase any of the Notes if the total principal amount of the Defaulted Notes exceeds 9.09% of the total number principal amount of shares to be purchased by all the Notes, and any non-defaulting Underwriters on such Closing Date, the other Underwriters shall will not be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. If any Underwriter or Underwriters shall so default and the aggregate number of shares with respect to which such default or defaults occur is more than ten percent (10%) 110% of the total number principal amount of shares to be purchased by all Underwriters on such Closing Date the Notes set forth opposite its name in Schedule I hereto. If the foregoing maximums are exceeded, the non-defaulting Underwriters, and arrangements any other underwriter satisfactory to the Representatives and who so agrees, will have the Company for right, but will not be obligated, to purchase (in such proportions as may be agreed upon among them) all of the Defaulted Notes. If the non-defaulting Underwriters or the other underwriters satisfactory to the Underwriters do not elect to purchase of such shares by other persons are not made the Defaulted Notes within forty-eight (48) 36 hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such Closing Date for a period of not more than five (5) full business days in order that the Company may effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees promptly to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be will terminate without liability on the part of any non-defaulting Underwriter or the Company, except for Section 4(g) hereof and the indemnity and contribution agreements of the Company and the Underwriters contained in Section 7 of this Agreement. As used in this Agreement, the term "Underwriter" includes any person substituted for an Underwriter pursuant to this Section 8. If the non-defaulting Underwriters or the other underwriters satisfactory to the Representatives are obligated or agree to purchase the Defaulted Notes of a defaulting Underwriter, the Representatives may postpone the Closing Date for up to seven full Business Days in order that the representations, warranties, covenants, indemnities, agreements and Company may effect any changes that may be necessary in the Registration Statement, the Disclosure Package or the Prospectus or in any other statements set forth in Section 2, the obligations with respect to expenses to be paid document or reimbursed pursuant to Sections 5 and 9 agreement, and the provisions Company agrees to file promptly any amendments or any supplements to the Registration Statement, the Disclosure Package or the Prospectus which, in the opinion of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect. the Representatives, may thereby be made necessary. 30 Nothing contained herein will relieve a defaulting Underwriter of any liability it may have for damages caused by its default.
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Substitution of Underwriters. If any Underwriter
or Underwriters shall default defaults in its
or their obligations obligation to purchase
shares the principal amount of
Stock hereunder on either series of the Notes that it has agreed to purchase under this Agreement, the non-defaulting Underwriters will be obligated to purchase (in the respective proportions that the principal amount of the Notes of such series set forth opposite the name of each non- defaulting Underwriter in Schedule I hereto bears to the total principal ...amount of the Notes of such series less the principal amount of the Notes of such series the defaulting Underwriter agreed to purchase set forth in Schedule I hereto) the principal amount of the Notes of such series that the defaulting Underwriter agreed but failed to purchase; except that the non-defaulting Underwriters will not be obligated to purchase any Closing Date and of the aggregate number Notes of shares which such series if the total principal amount of the Notes of such series that the defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) 9.09% of the total number principal amount of shares the Notes of such series, and any non-defaulting Underwriters will not be obligated to purchase more than 110% of the principal amount of the Notes of such series set forth opposite its name in Schedule I hereto. If the foregoing maximums are exceeded, the non-defaulting Underwriters, and any other underwriters satisfactory to the Representatives who so agree, will have the right, but will not be purchased by obligated, to purchase (in such proportions as may be agreed upon among them) all of the Notes of such series. 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 Notes of such series that 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) 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 or the Parent, except for the indemnity and contribution agreements of the Company, except the Parent and the Underwriters contained in Section 8 of this Agreement. As used in this Agreement, the term "Underwriter" includes any person substituted for an Underwriter pursuant to this Section 9. If the non-defaulting Underwriters or the other underwriters satisfactory to the Representatives are obligated or agree to purchase the Notes of a defaulting Underwriter, the Representatives may postpone the Closing Date for up to seven full Business Days in order that the representations, warranties, covenants, indemnities, agreements and Obligors may effect any changes that may be necessary in the Registration Statement or the Prospectus or in any other statements set forth in Section 2, the obligations with respect to expenses to be paid document or reimbursed pursuant to Sections 5 and 9 agreement, and the provisions Obligors agree to file promptly any amendments or any supplements to the Registration Statement or the Prospectus that, in the opinion of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect. the Representatives, may thereby be made necessary. Nothing contained herein will relieve a defaulting Underwriter of any liability it may have for damages caused by its default.
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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 Firm Shares agreed by such Underwriter or Underwriters to be purchased hereunder, upon tender of such Firm 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 Firm Shares not purchased does not aggregate
number more than 10% of
shares which such the total amou...nt of Firm Shares set forth in Schedule I hereto, the remaining Underwriters shall be obligated to take up and pay for (in proportion to their respective underwriting obligations hereunder as set forth in Schedule I hereto except as may otherwise be determined by you) the Firm Shares that the withdrawing or defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. purchase. (b) Termination Under Certain Circumstances. If any Underwriter or Underwriters shall so default fail to take up and pay for the amount of Firm 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 Firm 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 Firm Shares set forth in Schedule I hereto, and arrangements satisfactory to the Representatives and the Company you for the purchase of such shares Firm Shares by other persons are not made within forty-eight (48) 36 hours after such default, thereafter, this Agreement shall terminate. In the event of any such termination the Company shall not be under any liability to any Underwriter (except to the extent provided in Section 4(a)(vii) and Section 6 hereof) nor shall any Underwriter (other than an Underwriter who shall have failed, otherwise than for some reason permitted under this Agreement, to purchase the amount of Firm 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 Firm Shares to which a default relates are to be purchased by the remaining non-defaulting Underwriters or substituted Underwriters are required hereby by any other party or agree to take up all parties, the Representative or part of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such the First Closing Date for a period of not more than five (5) full seven business days in order that the Company may effect whatever necessary changes may thereby be made necessary in the Registration Statement or Statement, in the Prospectus, Time of Sale Disclosure Package, in the Prospectus or in any other documents or documents, as well as any other arrangements, and may be effected. As used herein, the Company agrees promptly term "Underwriter" includes any person substituted for an Underwriter under this Section 8. (d) No Relief from Liability. No action taken pursuant to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained Section shall relieve any defaulting Underwriter from liability, if any, in respect of its liability such default. -33- 9. Termination of this Agreement. (a) Right to Terminate. You, as Representative of the several Underwriters, shall have the right to terminate this Agreement by giving notice to the Company 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 condition of the Underwriters' obligations hereunder is not fulfilled, (iii)trading in the Company's Common Stock shall have been suspended by the Commission or the NYSE American or trading in securities generally on the NYSE American, NASDAQ Stock Market or New York Stock Exchange shall have been suspended, (iv) minimum or maximum prices for trading shall have been fixed, or maximum ranges for prices for securities shall have been required, on the NYSE American NASDAQ Stock Market or New York Stock Exchange, by such Exchange or by order of the Commission or any other Underwriters Governmental Authority having jurisdiction, (v) a banking moratorium shall have been declared by federal or New York state authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States, or (vi) there shall have occurred any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration by the United States of a national emergency or war, any change in financial markets, any substantial change or development involving a prospective substantial change in United States or international political, financial or economic conditions, or any other calamity or crisis that, in your 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(a)(vii) and Sections 11 through 21, inclusive, Section 6 hereof shall not terminate at all times be effective and shall remain survive such termination. (b) Notice of Termination. If you elect to terminate this Agreement as provided in full force and effect. this Section, the Company shall be notified promptly by you by telephone, confirmed by letter.
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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 Firm Shares agreed by such Underwriter or Underwriters to be purchased hereunder, upon tender of such Firm 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 Firm Shares not purchased does not aggregate
number more than 10% of
shares which such the total amou...nt of Firm Shares set forth in Schedule II 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 II hereto except as may otherwise be determined by you) 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 Firm Shares agreed by such Underwriter or Underwriters to be purchased hereunder, upon tender of such Firm Shares in accordance with the terms hereof, and the aggregate number amount of shares with respect to which such default or defaults occur is Firm 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 Firm Shares set forth in Schedule II hereto, and arrangements satisfactory to the Representatives and the Company you for the purchase of such shares Firm Shares by other persons are not made within forty-eight (48) 36 hours after such default, thereafter, this Agreement shall terminate. In the event of any such termination neither the Company nor any Selling Stockholder shall be under any liability to any Underwriter (except to the extent provided in Section 4(a)(vii), Section 4(b)(i), Section 4(b)(ii) and Section 6 hereof) nor shall any Underwriter (other than an Underwriter who shall have failed, otherwise than for some reason permitted under this Agreement, to purchase the amount of Firm Shares agreed by such Underwriter to be purchased hereunder) be under any liability to the Company or the Selling Stockholders (except to the extent provided in Section 6 hereof). (c) Postponement of Closing. If Firm Shares to which a default relates are to be purchased by the remaining non-defaulting Underwriters or substituted Underwriters are required hereby by any other party or agree to take up all parties, Piper Jaffray or part of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such the First Closing Date for a period of not more than five (5) full seven business days in order that the Company may effect whatever necessary changes may thereby be made necessary in the Registration Statement or Statement, in the Prospectus, Time of Sale Disclosure Package, in the Prospectus or in any other documents or documents, as well as any other arrangements, and may be effected. As used herein, the Company agrees promptly term "Underwriter" includes any person substituted for an Underwriter under this Section 8. (d) No Relief from Liability. No action taken pursuant to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained Section shall relieve any defaulting Underwriter from liability, if any, in respect of its liability such default. 35 9. Termination. (a) Right to Terminate. You, as Representatives of the several 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 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 your 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(a)(vii), Section 4(b)(i), Section 4(b)(ii) and Sections 11 through 21, inclusive, Section 6 hereof shall not at all times be effective. (b) Notice of Termination. If you elect to terminate this Agreement as provided in this Section, the Company and an Attorney-in-Fact, on behalf of the Selling Stockholders, shall remain in full force and effect. be notified promptly by you by telephone, confirmed by letter.
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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 Firm Shares agreed by such Underwriter or Underwriters to be purchased hereunder, upon tender of such Firm 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 Firm Shares not purchased does not aggregate
number more than 10% of
shares which such the total amou...nt of Firm Shares set forth in Schedule I hereto, the remaining Underwriters shall be obligated to take up and pay for (in proportion to their respective underwriting obligations hereunder as set forth in Schedule I hereto except as may otherwise be determined by you) the Firm Shares that the withdrawing or defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. purchase. (b) Termination Under Certain Circumstances. If any Underwriter or Underwriters shall so default fail to take up and pay for the amount of Firm 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 Firm 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 Firm Shares set forth in Schedule I hereto, and arrangements satisfactory to the Representatives and the Company you for the purchase of such shares Firm Shares by other persons are not made within forty-eight (48) 36 hours after such default, thereafter, this Agreement shall terminate. In the event of any such termination the Company shall not be under any liability to any Underwriter (except to the extent provided in Section 4(a)(vii), Section 4(b)(i), Section 4(b)(ii) and Section 6 hereof) nor shall any Underwriter (other than an Underwriter who shall have failed, otherwise than for some reason permitted under this Agreement, to purchase the amount of Firm Shares agreed by such Underwriter to be purchased hereunder) be under any liability to the Company (except to the extent provided in Section 6 hereof). (c) Postponement of Closing. If Firm Shares to which a default relates are to be purchased by the remaining non-defaulting Underwriters or substituted Underwriters are required hereby by any other party or agree to take up all parties, the Representative or part of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such the First Closing Date for a period of not more than five (5) full seven business days in order that the Company may effect whatever necessary changes may thereby be made necessary in the Registration Statement or Statement, in the Prospectus, Time of Sale Disclosure Package, in the Prospectus or in any other documents or documents, as well as any other arrangements, and may be effected. As used herein, the Company agrees promptly term "Underwriter" includes any person substituted for an Underwriter under this Section 8. (d) No Relief from Liability. No action taken pursuant to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained Section shall relieve any defaulting Underwriter from liability, if any, in respect of its liability such default. 28 9. Termination of this Agreement. (a) Right to Terminate. You, as Representative of the several Underwriters, shall have the right to terminate this Agreement by giving notice to the Company as hereinafter specified at any time at or prior to the First 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 or their part to be performed hereunder, (ii) any condition of the Underwriters' obligations hereunder is not fulfilled, (iii) trading in the Company's Common Stock shall have been suspended by the Commission or the NASDAQ Stock Market or trading in securities generally on the NASDAQ Stock Market or New York Stock Exchange shall have been suspended, (iv) minimum or maximum prices for trading shall have been fixed, or maximum ranges for prices for securities shall have been required, on the NASDAQ Stock Market or New York Stock Exchange, by such Exchange or by order of the Commission or any other Underwriters Governmental Authority having jurisdiction, (v) a banking moratorium shall have been declared by federal or New York state authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States, or (vi) there shall have occurred any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration by the United States of a national emergency or war, any change in financial markets, any substantial change or development involving a prospective substantial change in United States or international political, financial or economic conditions, or any other calamity or crisis that, in your 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(a)(vii) and Sections 11 through 21, inclusive, Section 6 hereof shall not terminate at all times be effective and shall remain survive such termination. (b) Notice of Termination. If you elect to terminate this Agreement as provided in full force and effect. this Section, the Company shall be notified promptly by you by telephone, confirmed by letter.
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Substitution of Underwriters.
(a) If any Underwriter or Underwriters shall
default fail to take up and pay for the amount of Firm Shares agreed by such Underwriter or Underwriters to be purchased hereunder, upon tender of such Firm Shares in
its or their obligations to purchase shares of Stock hereunder on any Closing Date accordance with the terms hereof, and the
amount of Firm Shares not purchased does not aggregate
number more than 10% of
shares which such the total amount of Firm Shares set forth in Schedule II hereto, t...he remaining Underwriters shall be obligated to take up and pay for (in proportion to their respective underwriting obligations hereunder as set forth in Schedule II 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. 29 (b) If any Underwriter or Underwriters shall so default fail to take up and pay for the amount of Firm Shares agreed by such Underwriter or Underwriters to be purchased hereunder, upon tender of such Firm Shares in accordance with the terms hereof, and the aggregate number amount of shares with respect to which such default or defaults occur is Firm 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 Firm Shares set forth in Schedule II hereto, and arrangements satisfactory to the Representatives and the Company Representative for the purchase of such shares Firm Shares by other persons are not made within forty-eight (48) 36 hours after such default, thereafter, this Agreement shall terminate. In the event of any such termination neither the Company nor any Selling Stockholder shall be under any liability to any Underwriter (except to the extent provided in Section 4(a)(ix), Section 4(b)(i), Section 4(b)(ii) and Section 6 hereof) nor shall any Underwriter (other than an Underwriter who shall have failed, otherwise than for some reason permitted under this Agreement, to purchase the amount of Firm Shares agreed by such Underwriter to be purchased hereunder) be under any liability to the Company or the Selling Stockholders (except to the extent provided in Section 6 hereof). (c) If Firm Shares to which a default relates are to be purchased by the remaining non-defaulting Underwriters or substituted Underwriters are required hereby by any other party or agree to take up all parties, the Representative or part of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such the First Closing Date for a period of not more than five (5) full seven business days in order that the Company may effect whatever necessary changes may thereby be made necessary in the Registration Statement or Statement, in the Prospectus, Time of Sale Disclosure Package, in the Prospectus or in any other documents or documents, as well as any other arrangements, and may be effected. As used herein, the Company agrees promptly to file term "Underwriter" includes 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 person 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 an 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 under 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. 8.
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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 Firm Shares agreed by such Underwriter or Underwriters to be purchased hereunder, upon tender of such Firm 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 Firm Shares not purchased does not aggregate
number more than 10% of
shares which such the total amou...nt of Firm Shares set forth in Schedule I hereto, the remaining Underwriters shall be obligated to take up and pay for (in proportion to their respective underwriting obligations hereunder as set forth in Schedule I hereto except as may otherwise be determined by you) the Firm Shares that the withdrawing or defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) of the total number of shares to be purchased by all Underwriters on such Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares which such defaulting Underwriter or Underwriters agreed but failed to purchase on such Closing Date. purchase. (b) Termination Under Certain Circumstances. If any Underwriter or Underwriters shall so default fail to take up and pay for the amount of Firm 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 Firm 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 Firm Shares set forth in Schedule I hereto, and arrangements satisfactory to the Representatives and the Company you for the purchase of such shares Firm Shares by other persons are not made within forty-eight (48) 36 hours after such default, thereafter, this Agreement shall terminate. In the event of any such termination neither the Company shall be under any liability to any Underwriter (except to the extent provided in Section 4(a)(vii) and Section 6 hereof) nor shall any Underwriter (other than an Underwriter who shall have failed, otherwise than for some reason permitted under this Agreement, to purchase the amount of Firm 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 Firm Shares to which a default relates are to be purchased by the remaining non-defaulting Underwriters or substituted Underwriters are required hereby by any other party or agree to take up all parties, the Representatives or part of the shares of Stock of a defaulting Underwriter or Underwriters on such Closing Date as provided in this Section 10, (i) the Company shall have the right to postpone such the First Closing Date for a period of not more than five (5) full seven business days in order that the Company may effect whatever necessary changes may thereby be made necessary in the Registration Statement 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 such default. 32 9. Termination. (a) Right to Terminate. You, as Representatives of the several 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 in the Common Stock shall have been suspended by the Commission or The NASDAQ Global Market or trading in securities generally on The NASDAQ Global Market or New York Stock Exchange shall have been suspended, (iv) minimum or maximum prices for trading shall have been fixed, or maximum ranges for prices for securities shall have been required, on The NASDAQ Global Market or New York Stock Exchange, by such Exchange or by order of the 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 your 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(a)(vii) and Sections 11 through 21, inclusive, Section 6 hereof shall not at all times be effective. (b) Notice of Termination. If you elect to terminate and this Agreement as provided in this Section, the Company shall remain in full force and effect. be notified promptly by you by telephone, confirmed by letter.
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Substitution of Underwriters. If any
Underwriter one or
more of the Underwriters shall
default in its fail or
their obligations refuse at the Closing Date, or the relevant Delivery Date, as the case may be, to purchase
shares any of
Stock hereunder on any Closing Date the Securities which it or they have agreed to purchase hereunder, and the aggregate
number principal amount of
shares Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase
does is not
exceed ten percent (10%) mor...e than one-tenth of the total number aggregate principal amount of shares Securities to be purchased by all Underwriters on such Closing Date, date, the other Underwriters shall be obligated obligated, severally, in proportion to their respective commitments hereunder, to purchase the shares Securities which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such Closing Date. date, in the same proportions as the principal amount of Securities, which they have respectively agreed to purchase pursuant to Section 1 hereof, bears to the total aggregate principal amount of Securities which all such non-defaulting Underwriters have so agreed to purchase, or in such other proportions as such non-defaulting Underwriters may specify; provided that in no event shall the maximum principal amount of Securities which any Underwriter has become obligated to purchase pursuant to Section 1 hereof be increased pursuant to this Section 9 by more than one-ninth of the principal amount of Securities agreed to be purchased by such Underwriter without the prior written consent of such Underwriter. If any Underwriter or Underwriters shall so default fail or refuse at the Closing Date, or the relevant Delivery Date, as the case may be, to purchase any Securities and the aggregate number principal amount of shares with respect to Securities which such default defaulting Underwriter or defaults occur is more than ten percent (10%) Underwriters agreed but failed or refused to purchase exceeds one-tenth of the total number aggregate principal amount of shares the Securities to be purchased by all Underwriters on such Closing Date date and arrangements satisfactory to the Representatives any non-defaulting Underwriter and the Company for the purchase of such shares by other persons Securities are not made within forty-eight (48) 48 hours after such default, this Agreement shall terminate. If (or, with respect to the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part Underwriters' exercise of any applicable over-allotment option for the purchase of Option Securities on a Delivery Date after the Closing Date, the obligations 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, purchase, 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 sell, such Option Securities on such Delivery Date) will terminate without liability on the part of any non-defaulting Underwriter or the Company, except Company for the purchase or sale of any Securities under this Agreement. In any such case either the Underwriters or the Company shall have the right to postpone the Closing Date or the relevant Delivery Date, as the case may be, but in no event for longer than seven days, in order that the representations, warranties, covenants, indemnities, agreements required changes, if any, in the Registration Statement and in the Prospectus or in any other statements set forth documents or arrangements may be effected. Any action taken pursuant to this Section 9 shall not relieve any defaulting Underwriter from liability in Section 2, respect of any default of such Underwriter under this Agreement. 24 10. Termination. Until the obligations with respect Closing Date or any relevant Delivery Date, as the case may be, this Agreement may be terminated by the Representatives on behalf of the Underwriters by giving notice as hereinafter provided to expenses the Company if (i) the Company will have failed, refused or been unable, at or prior to the Closing Date or such Delivery Date, as the case may be, to perform any agreement required on its part to be paid performed hereunder or reimbursed (ii) any condition to the Underwriters' obligations hereunder is not fulfilled at or prior to the Closing Date or such Delivery Date, as the case may be. Any termination of this Agreement pursuant to this Section 10 will be without liability on the part of the Company or any Underwriter, except as otherwise provided in Sections 5 4(j), 4(k) and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect. 8 hereof.
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