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 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 in Section 2, the obligations with respect to expenses to documents or arrangements may be paid or reimbursed effected. Any action taken pursuant to Sections 5 and this Section 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain relieve any defaulting Underwriter from liability in full force and effect. respect of any default of such Underwriter under this Agreement.
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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 proportions which the principal amount of Securities which they have respectively agreed to purchase pursuant to Section 1 hereof bears to the aggregate 22 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 8 by more than one-ninth of the principal amount of Securities agreed to be purchased by such Underwriter without the prior written consent of such Underwriter. If any Underwriter or Underwriters shall so default fail or refuse at the Closing Date, 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 in Section 2, the obligations with respect to expenses to documents or arrangements may be paid or reimbursed effected. Any action taken pursuant to Sections 5 and 9 and the provisions of this Section 7 and Sections 11 through 21, inclusive, 8 shall not terminate and shall remain relieve any defaulting Underwriter from liability in full force and effect. respect of any default of such Underwriter under this Agreement.
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Substitution of Underwriters.
(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 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) 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, 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 shall relieve any defaulting Underwriter from liability, if any, in respect of its liability such default. 36 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 Global 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 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), Section 4(b)(i) 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) 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 shall relieve any defaulting Underwriter from liability, if any, in respect of its liability such default. 34 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 Global 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 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 a material disruption in commercial banking or securities settlement or clearance services in the United States shall have occurred, 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 8 by more than one-ninth of the principal amount of Securities agreed to be purchased by such Underwriter without the prior written consent of such Underwriter. If any Underwriter or Underwriters shall so default fail or refuse at the Closing Date, or the relevant Delivery 23 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 in Section 2, the obligations with respect to expenses to documents or arrangements may be paid or reimbursed effected. Any action taken pursuant to Sections 5 and 9 and the provisions of this Section 7 and Sections 11 through 21, inclusive, 8 shall not terminate and shall remain relieve any defaulting Underwriter from liability in full force and effect. respect of any default of such Underwriter under this Agreement.
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Substitution of Underwriters.
(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. 35 (d) No Relief from Liability. No action taken pursuant to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained Section shall relieve any defaulting Underwriter from liability, if any, in respect of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be without liability on the part of any non-defaulting Underwriter or the Company, except that the representations, warranties, covenants, indemnities, agreements and other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 and the provisions of Section 7 and Sections 11 through 21, inclusive, shall not terminate and shall remain in full force and effect. such default.
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Substitution of Underwriters. If any Underwriter
or Underwriters shall default defaults in its
or their obligations obligation to purchase
shares the principal amount of
Stock hereunder on the Notes which it has agreed to purchase under this Agreement, the non-defaulting Underwriters will be obligated to purchase (in the respective proportions which the principal amount of the Notes set forth opposite the name of each non-defaulting Underwriter in Schedule I hereto bears to the total principal amount of the Notes less the pr...incipal amount of the Notes the defaulting Underwriter agreed to purchase set forth in Schedule I hereto) the principal amount of the Notes which 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 if the total principal amount of shares the Notes which such the defaulting Underwriter or Underwriters agreed but failed to purchase does not exceed ten percent (10%) exceeds 9.09% of the total number principal amount of shares the Notes, and any non-defaulting Underwriters will not be obligated to purchase more than 110% of the principal amount of the Notes 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. If the non-defaulting Underwriters on such Closing Date, or the other underwriters satisfactory to the Underwriters shall be obligated severally, in proportion to their respective commitments hereunder, do not elect to purchase the shares which such Notes 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, Company or any Guarantor, except for the indemnity and contribution agreements of the Company and each of the Guarantors and the 23 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 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 other statements set forth in Section 2, the obligations with respect to expenses to be paid or reimbursed pursuant to Sections 5 and 9 Company and the provisions Guarantors may effect any changes that may be necessary in the Registration Statement, the Disclosure Package or the Prospectus or in any other document or agreement, and each of Section 7 the Company and Sections 11 through 21, inclusive, shall not terminate and shall remain the Guarantors agrees to file promptly any amendments or any supplements to the Registration Statement, the Disclosure Package or the Prospectus which, in full force and effect. the opinion of 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 to more than 10% of
shares which such the total a...mount 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 Firm Shares not purchased aggregates to which such default or defaults occur is more than ten percent (10%) 10% of the total number amount of shares to be purchased by all Underwriters on such Closing Date 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 have no liability to any Underwriter (except to the extent provided in Sections 4(g) and 6 hereof) nor shall any Underwriter (other than an Underwriter who shall have failed, otherwise than for some reason permitted under this Agreement, to purchase the amount of 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 Statement, the Time of Sale Disclosure Package, the Prospectus or the Prospectus, or in any other documents or documents, as well as any other arrangements, and may be effected. As used herein, the Company agrees promptly term "Underwriter" includes any person substituted for an Underwriter under this Section 8. (d) No Relief from Liability. No action taken pursuant to file any amendments to the Registration Statement or supplements to the Prospectus which may thereby be made necessary, and (ii) the respective numbers of shares to be purchased by the remaining Underwriters or substituted Underwriters shall be taken as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained Section 8 shall relieve any defaulting Underwriter from liability, if any, in respect of its liability such default. 30 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) hereof, 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 Sections 4(g) and 6 hereof shall at all times be effective. (b) Notice of Termination. If you elect to terminate this Agreement as provided in this Section 7 and Sections 11 through 21, inclusive, 9, the Company shall not terminate and 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
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 Firm Securities or
Underwriters Option 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 m...ake arrangements for one or more of the non-defaulting Underwriters, or any other Underwriters underwriters, to purchase such Firm Securities or Option 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 reasonably satisfactory to the Representatives and the Company Underwriters to purchase such Firm Securities or Option 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 Firm Securities or substituted Underwriters are required hereby or agree to take up all or part of the shares of Stock Option Securities of a defaulting Underwriter or Underwriters by the Representative and the Company as provided above, the aggregate number of Firm Securities or Option Securities which remains unpurchased on such Closing Date as provided does not exceed one-eleventh of the aggregate number of all the Firm Securities or Option 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 Firm Securities or Option 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 Firm Securities or Option Securities which such Underwriter agreed to purchase hereunder) of the Firm Securities or Option 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 Firm Securities or Option 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 Firm Securities or Option Securities which remains unpurchased exceeds one-eleventh of the aggregate number of all the Firm Securities or Option Securities 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 to purchase and of the Company, as the basis of their underwriting obligation for all purposes of this Agreement. Nothing herein contained case may be, to sell the Option Securities to be purchased and sold on such date, shall relieve any defaulting Underwriter of its liability to the Company or the other Underwriters for damages occasioned by its default hereunder. Any termination of this Agreement pursuant to this Section 10 shall be terminate, without liability on the part of any non-defaulting Underwriter or to the Company, and without liability on the part of the Company, except that as provided in Sections 4(b), 5, 6 and 7. The provisions of this Section 8 shall not in any way affect the representations, warranties, covenants, indemnities, agreements and other statements set forth liability of any defaulting Underwriter to the Company or the 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 such Firm Securities 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. Option Securities.
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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 to more than 10% of
shares which such the total a...mount 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(g) 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 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 or vTv LLC 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(g) 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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