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 obligation to purchase
shares of Stock hereunder on any Closing Date
and the
aggregate number of shares which such defaulting Underwriter or Underwriters Securities 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 Closing Date, the
Representative shall have the right, within 36 hours thereafter, to make arrangements for on...e or more of the non-defaulting Underwriters, or any other Underwriters underwriters, to purchase such Securities 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 obligated severally, in proportion entitled to their respective commitments hereunder, a further period of 36 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 and the Company Underwriters to purchase such Securities 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 Securities of a defaulting Underwriter or Underwriters by the Representative and the Company as provided above, the aggregate number of Securities which remains unpurchased on such Closing Date as provided does not exceed one-eleventh of the aggregate number of all the Securities that all the Underwriters are obligated to purchase on such date, then the Company shall have the right to require each non-defaulting Underwriter to purchase the number of Securities 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 Securities which such Underwriter agreed to purchase hereunder) of the Securities 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 applicable 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. If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the Representative and (ii) the respective numbers Company as provided above, the aggregate number of shares such Securities which remains unpurchased exceeds 10% of the aggregate number of all the 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 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 the representations, warranties, covenants, indemnities, agreements provisions of Sections 5(a)(xi), 7 and other statements set forth 10 shall at all times be effective and shall survive termination. The provisions of this Section 8 shall not in any way affect the liability of any defaulting Underwriter to the Company or the non-defaulting 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 such Securities. If this Agreement is terminated by the Representative pursuant to Sections 5 this Section 8, the Company will have no obligation to reimburse any defaulting Underwriter. 24 9. Representations and 9 Agreements to Survive Delivery. All representations, warranties, and agreements of the Company herein or in certificates delivered pursuant hereto, including, but not limited to, the agreements of the Underwriters and the provisions of Company contained in Section 5(a)(xi) and Section 7 and Sections 11 through 21, inclusive, shall not terminate and hereof, shall remain operative and in full force and effect. effect regardless of any investigation made by or on behalf of the Underwriters or any controlling person thereof, or the Company or any of its officers, directors, or controlling persons, and shall survive delivery of, and payment for, the Securities to and by the Underwriters hereunder.
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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 Closing Date
and the
aggregate number of shares which such defaulting Underwriter or Underwriters Securities 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 Closing Date, the
Representative shall have the right, within 36 hours thereafter, to make arrangements for on...e or more of the non-defaulting Underwriters, or any other Underwriters underwriters, to purchase such Securities 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 obligated severally, in proportion entitled to their respective commitments hereunder, a further period of 36 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 and the Company Underwriters to purchase such Securities 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 Securities of a defaulting Underwriter or Underwriters by the Representative and the Company as provided above, the aggregate number of Securities which remains unpurchased on such Closing Date as provided does not exceed one-eleventh of the aggregate number of all the Securities that all the Underwriters are obligated to purchase on such date, then the Company shall have the right to require each non-defaulting Underwriter to purchase the number of Securities 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 Securities which such Underwriter agreed to purchase hereunder) of the Securities 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 applicable 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. If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the Representative and (ii) the respective numbers Company as provided above, the aggregate number of shares such Securities which remains unpurchased exceeds 10% of the aggregate number of all the 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 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 the representations, warranties, covenants, indemnities, agreements provisions of Sections 5(a)(xi), 7 and other statements set forth 10 shall at all times be effective and shall survive termination. The provisions of this Section 8 shall not in any way affect the liability of any defaulting Underwriter to the Company or the non-defaulting 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 such Securities. If this Agreement is terminated by the Representative pursuant to Sections 5 this Section 8, the Company will have no obligation to reimburse any defaulting Underwriter. 22 9. Representations and 9 Agreements to Survive Delivery. All representations, warranties, and agreements of the Company herein or in certificates delivered pursuant hereto, including, but not limited to, the agreements of the Underwriters and the provisions of Company contained in Section 5(a)(xi) and Section 7 and Sections 11 through 21, inclusive, shall not terminate and hereof, shall remain operative and in full force and effect. effect regardless of any investigation made by or on behalf of the Underwriters or any controlling person thereof, or the Company or any of its officers, directors, or controlling persons, and shall survive delivery of, and payment for, the Securities to and by the Underwriters hereunder.
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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 7 and Sections 11 through 21, 18, inclusive, shall not terminate and shall remain in full force and effect. -25- 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 Tonix Pharmaceuticals Holding Corp., 509 Madison Avenue, Suite 306, New York, NY 10022, telecopy number: (212) 923-5700, Attention: Chief Financial 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 obligation to purchase
shares of Stock hereunder on
any the Closing Date
and the
aggregate number of shares which such defaulting Underwriter or Underwriters Securities 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
Representative shall have the right, within 36 hours thereafter, to make arrangement...s for one or more of the non-defaulting Underwriters, or any other Underwriters underwriters, to purchase such Securities 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 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 and the Company Underwriters to purchase such Securities 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 Securities of a defaulting Underwriter or Underwriters by the Representative and the Company as provided above, the aggregate number of Securities which remains unpurchased on such the Closing Date as provided does not exceed one-eleventh of the aggregate number of all the Securities 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 Securities which such Underwriter agreed to purchase hereunder at the Closing 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 Securities which such Underwriter agreed to 32 purchase hereunder) of the Securities 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 Representatives 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. If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the Representative and (ii) the respective numbers Company as provided above, the aggregate number of shares such Securities which remains unpurchased exceeds 10% of the aggregate number of all the 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 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 5(a)(x), 7 and 9. The provisions of this Section 10 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 10 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 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect. such Shares.
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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 Closing Date
and the
aggregate number of shares which such defaulting Underwriter or Underwriters Securities 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 Closing Date, the
Representative shall have the right, within 36 hours thereafter, to make arrangements for on...e or more of the non-defaulting Underwriters, or any other Underwriters underwriters, to purchase such Securities 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 obligated severally, in proportion entitled to their respective commitments hereunder, a further period of 36 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 and the Company Underwriters to purchase such Securities 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 Securities of a defaulting Underwriter or Underwriters by the Representative and the Company as provided above, the aggregate number of Securities which remains unpurchased on such Closing Date as provided does not exceed one-eleventh of the aggregate number of all the Securities that all the Underwriters are obligated to purchase on such date, then the Company shall have the right to require each non-defaulting Underwriter to purchase the number of Securities 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 Securities which such Underwriter agreed to purchase hereunder) of the Securities of such defaulting Underwriter or Underwriters for which such arrangements have not been made; but -31- 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 applicable 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. If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the Representative and (ii) the respective numbers Company as provided above, the aggregate number of shares such Securities which remains unpurchased exceeds 10% of the aggregate number of all the 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 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 the representations, warranties, covenants, indemnities, agreements provisions of Sections 5(a)(xi), 7 and other statements set forth 10 shall at all times be effective and shall survive termination. The provisions of this Section 8 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 such Securities. If this Agreement is terminated by the Representative pursuant to Sections 5 and 9 and this Section 8, the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect. Company will have no obligation to reimburse any defaulting Underwriter.
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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, 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 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 Underwriters, shall be mailed, delivered or telecopied to Laidlaw & Company (UK) Ltd., 546 Fifth Avenue, Fifth Floor, New York, New York 10036, telecopy number: 857-930-4535, Attention: Managing Director; and if to the Company, shall be mailed, delivered or telecopied to it at Pershing Gold Corporation, 1658 Cole Boulevard, Building 6, Suite 210, Lakewood, Colorado 80401, Attention: Stephen Alfers, President and 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, Pre-Funded Warrants and/or Warrants hereunder on
the Closing Date or any
Option Closing Date and the aggregate number of
shares Shares, Pre-Funded Warrants 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 Securities to be purchased by all Underwriters on such
Closing Date or ...Option Closing Date, the other Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, to purchase the shares Shares, Pre-Funded Warrants 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 Shares, Pre-Funded Warrants and/or Warrants with respect to which such default or defaults occur is more than ten percent (10%) of the total number of shares Shares, Pre-Funded Warrants 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 Shares, Pre-Funded Warrants and/or Warrants by other persons are not made within forty-eight (48) hours after such default, this Agreement shall terminate. If the remaining Underwriters or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock Shares, the Pre-Funded Warrants 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 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, the Pre-Funded Warrants and/or Warrants to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained shall relieve any defaulting Underwriter of its liability to the Company or the any other Underwriters Underwriter for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter Underwriters or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, 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 5(a)(viii) and Section 9 and Sections 11 through 21, 19, inclusive, shall not terminate and shall remain in full force and effect. -32- As used in this Agreement, the term "Underwriter" shall be deemed to include any person substituted for a defaulting Underwriter under this Section 10. Any action taken under this Section 10 shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.
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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 Closing Date
and the
aggregate number of shares which such defaulting Underwriter or Underwriters Shares 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 Closing Date, the
Representatives shall have the right, within 36 hours thereafter, to make arrangements for one o...r more of the non-defaulting Underwriters, or any other Underwriters underwriters, to purchase such Shares on the terms contained herein. If, however, the Representatives shall not have completed such arrangements within such 36-hour period, then the 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 and the Company Underwriters to purchase such Shares 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 of a defaulting Underwriter or Underwriters by the Representatives and the Company as provided above, the aggregate number of Shares which remains unpurchased on such Closing Date as provided in this Section 10, (i) does not exceed one-eleventh of the aggregate number of all the Shares that all the Underwriters are obligated to purchase on such date, then the Company shall have the right to require each non-defaulting Underwriter to purchase the number of Shares which such Underwriter agreed to purchase hereunder at such date and, in addition, to require each non-defaulting Underwriter to purchase its pro rata share (based on the number of Shares which such Underwriter agreed to purchase hereunder) of the Shares 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 Representatives 33 or the Company and the Selling Stockholder shall have the right to postpone such the applicable 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. If, after giving effect to any arrangements for the purchase of the Shares of a defaulting Underwriter or Underwriters by the Representatives and (ii) the respective numbers Company as provided above, the aggregate number of shares such Shares which remains unpurchased exceeds 10% of the aggregate number of all the Shares to be purchased by at such date, then this Agreement, or, with respect to a Closing Date which occurs after the remaining First Closing Date, the obligations of the Underwriters or substituted Underwriters shall be taken as the basis to purchase and 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 Selling Stockholder, as the case may be, to this Section 10 sell the Option Shares to be purchased and sold on such date, shall be terminate, without liability on the part of any non-defaulting Underwriter to the Company or the Company, Selling Stockholder, and without liability on the part of the Company or the Selling Stockholder, except that as provided in Sections 5(b), 6, 7 and 8. The provisions of this Section 9 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 9 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 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect. such Shares.
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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 Closing Date
and the
aggregate number of shares which such defaulting Underwriter or Underwriters Shares 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 Closing Date, the
Representative shall have the right, within 36 hours thereafter, to make arrangements for one or... more of the non-defaulting Underwriters, or any other Underwriters underwriters, to purchase such Shares 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 obligated severally, in proportion entitled to their respective commitments hereunder, a further period of 36 hours within which to procure another party or other parties to purchase the shares which such defaulting Underwriter or Underwriters agreed but failed to purchase Shares on such Closing Date. If terms. If, after giving effect to 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 Shares of a defaulting Underwriter or Underwriters by the Representative and the Company as provided above, the aggregate number of Shares that remains unpurchased on such Closing Date as provided does not exceed one-eleventh of the aggregate number of all the Shares that all the Underwriters are obligated to purchase on such date, then the Company shall have the right to require each non-defaulting Underwriter to purchase the number of Shares that 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 that such Underwriter agreed to purchase hereunder) of the Shares of such defaulting Underwriter or Underwriters for which 25 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 applicable 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 Statement, the General Disclosure Package or the Prospectus, or in any other documents or arrangements, Prospectus), and the Company agrees promptly to file promptly any amendments to the Registration Statement Statement, the General Disclosure Package or supplements to the Prospectus which that 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 of a defaulting Underwriter or Underwriters by the Representative and (ii) the respective numbers Company as provided above, the aggregate number of shares such Shares that remains unpurchased exceeds 10% of the aggregate number of all the 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 at 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 to the Company, and without liability on the part of the Company to the non-defaulting Underwriter, except as provided in Sections 4(b), 5, 6 and 7. The provisions of this Section 8 shall not in any way affect the liability of any defaulting Underwriter to the Company or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth non-defaulting 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 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect. such Shares.
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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 Closing Date
and the
aggregate number of shares which such defaulting Underwriter or Underwriters Shares 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 Closing Date, the
Representative shall have the right, within 36 hours thereafter, to make arrangements for one or... more of the non-defaulting Underwriters, or any other Underwriters underwriters, to purchase such Shares 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 obligated severally, in proportion entitled to their respective commitments hereunder, a further period of 36 hours within which to procure another party or other parties to purchase the shares which such defaulting Underwriter or Underwriters agreed but failed to purchase Shares on such Closing Date. If terms. If, after giving effect to 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 Shares of a defaulting Underwriter or Underwriters by the Representative and the Company as provided above, the aggregate number of Shares that remains unpurchased on such Closing Date as provided does not exceed one-eleventh of the aggregate number of all the Shares that all the Underwriters are obligated to purchase on such date, then the Company shall have the right to require each non-defaulting Underwriter to purchase the number of Shares that 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 that such Underwriter agreed to purchase hereunder) of the Shares 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 applicable 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 Statement, the General Disclosure Package or the Prospectus, or in any other documents or arrangements, Prospectus), and the Company agrees promptly to file promptly any amendments to the Registration Statement Statement, the General Disclosure Package or supplements to the Prospectus which that in the opinion of the Company and the Underwriters and their counsel may thereby be made necessary, necessary. 25 If, after giving effect to any arrangements for the purchase of the Shares of a defaulting Underwriter or Underwriters by the Representative and (ii) the respective numbers Company as provided above, the aggregate number of shares such Shares that remains unpurchased exceeds 10% of the aggregate number of all the Shares to be purchased by at 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, then this Agreement pursuant to this Section 10 shall be terminate, without liability on the part of any non-defaulting Underwriter to the Company, and without liability on the part of the Company to the non-defaulting Underwriter, except as provided in Sections 4(b), 5, 6 and 7. The provisions of this Section 8 shall not in any way affect the liability of any defaulting Underwriter to the Company or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth non-defaulting 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 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect. such Shares.
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