Termination of this Agreement. (a) The Underwriter shall have the right to terminate this Agreement by giving notice to the Company as hereinafter specified at any time at or prior to the Closing Date or any Option Closing Date (as to the Option Shares to be purchased on such Option Closing Date only), if in the reasonable discretion of the Underwriter, (i) there has occurred any material adverse change in the securities markets or any event, act or occurrence that has materially disrupted, or in the opinion of the Underwrite
...r, will in the future materially disrupt, the securities markets or there shall be such a material adverse change in general financial, political or economic conditions or the effect of international conditions on the financial markets in the United States is such as to make it, in the judgment of the Underwriter, inadvisable or impracticable to market the Shares or enforce contracts for the sale of the Shares (ii) trading in the Company's Common Stock shall have been suspended by the Commission or Nasdaq or trading in securities generally on the Nasdaq Stock Market, the NYSE or the NYSE MKT shall have been suspended, (iii) 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, the NYSE or NYSE MKT, by such exchange or by order of the Commission or any other governmental authority having jurisdiction, (iv) a banking moratorium shall have been declared by federal or state authorities, (v) there shall have occurred any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration by the United States of a national emergency or war, any substantial change or development involving a prospective substantial change in United States or international political, financial or economic conditions or any other calamity or crisis, or (vi) the Company suffers any loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, that in the Underwriter's reasonable judgment is material and adverse and makes it impractical or inadvisable to proceed with the completion of the sale of and payment for the Shares, or (vii) in the judgment of the Underwriter, there has been, since the time of execution of this Agreement or since the respective dates as of which information is given in the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus, any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects of the Company and its subsidiaries considered as a whole, whether or not arising in the ordinary course of business. Any such termination shall be without liability of any party to any other party except that the provisions of Section 5(a)(viii) and Section 7 hereof shall at all times be effective and shall survive such termination. 29 (b) If the Underwriter elects to terminate this Agreement as provided in this Section, the Company shall be notified promptly by the Underwriter by telephone, confirmed by letter.
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Termination of this Agreement. (a) The
Underwriter Underwriters shall have the right to terminate this Agreement by giving notice to the Company as hereinafter specified at any time at or prior to the Closing
Date Date, if (i) the Company shall have failed, refused or
any Option Closing Date (as been unable, at or prior to the
Option Shares Closing Date, to perform any material agreement on its part to be
purchased on such Option Closing Date only), if in the reasonable discretion performed hereunder, (ii) any condition of th
...e Underwriter, (i) there has occurred any material adverse change Underwriters' obligations hereunder is not fulfilled or waived by the Representative in the securities markets or any event, act or occurrence that has materially disrupted, or in the opinion of the Underwriter, will in the future materially disrupt, the securities markets or there shall be such a material adverse change in general financial, political or economic conditions or the effect of international conditions on the financial markets in the United States is such as to make it, in the judgment of the Underwriter, inadvisable or impracticable to market the Shares or enforce contracts for the sale of the Shares (ii) writing, (iii) trading in the Company's Common Stock shall have been suspended by the Commission or Nasdaq NASDAQ or trading in securities generally on the Nasdaq Stock Market, the NYSE or the NYSE MKT NASDAQ shall have been suspended, (iii) (iv) minimum or maximum prices for trading shall have been fixed, or maximum ranges for prices for securities (which includes the Company's Common Stock) shall have been required, on the Nasdaq Stock Market, the NYSE or NYSE MKT, NASDAQ, by such exchange or by order of the Commission or any other governmental authority having jurisdiction, (iv) (v) a banking moratorium shall have been declared by federal or state authorities, (v) there shall have occurred any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration authorities which prevents payment by the United States of a national emergency or war, any substantial change or development involving a prospective substantial change in United States or international political, financial or economic conditions or any other calamity or crisis, or an Underwriter pursuant to Section 3, (vi) the Company suffers is in material breach of any loss by strike, fire, flood, earthquake, accident of its representations, warranties or other calamity, whether covenants hereunder, (vii) the Underwriters shall have become aware after the date hereof, of events that are reasonably expected to result in (A) a Material Adverse Effect, or not covered by insurance, that (B) a material adverse change in general market conditions, in each case, as would make it impracticable, in the Underwriter's Underwriters' reasonable judgment is material and adverse and makes it impractical or inadvisable judgement, to proceed with the completion offering, sale and/or delivery of the Securities or to enforce contracts made by the Underwriters for the sale of and payment for the Shares, Securities, or (vii) in the judgment (viii) a director or executive officer of the Underwriter, there has been, since the time of execution of this Agreement or since the respective dates as of which information Company: (A) is given in the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus, charged with a felony offense relating to any material adverse change in the assets, properties, condition, financial or otherwise, corporate matter arising from conduct relating to the Company; (B) becomes the subject of a public action or in the results of operations, business affairs or business prospects of investigation by a governmental body arising from conduct relating to the Company and its subsidiaries considered (or such governmental body announces that it intends to take any such action or undertake any such investigation); or (C) is enjoined, suspended or otherwise limited from serving as a whole, whether director or not arising in executive officer under the ordinary course of business. federal securities laws. Any such termination shall be without liability of any party to any other party except that the provisions of Section 5(a)(viii) 4(a)(vii) and Section 7 6 hereof shall at all times be effective and shall survive such termination. 29 (b) If the Underwriter Representative elects to terminate this Agreement as provided in this Section, the Company shall be notified promptly by the Underwriter Representative by telephone, confirmed by letter.
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Termination of this Agreement. (a) The
Underwriter Underwriters shall have the right to terminate this Agreement by giving notice to the Company as hereinafter specified at any time at or prior to the Closing
Date Date, if (i) the Company shall have failed, refused or
any Option Closing Date (as been unable, at or prior to the
Option Shares Closing Date, to perform any material agreement on its part to be
purchased on such Option Closing Date only), if in the reasonable discretion performed hereunder, (ii) any condition of th
...e Underwriter, (i) there has occurred any material adverse change Underwriters' obligations hereunder is not fulfilled or waived by the Representative in the securities markets or any event, act or occurrence that has materially disrupted, or in the opinion of the Underwriter, will in the future materially disrupt, the securities markets or there shall be such a material adverse change in general financial, political or economic conditions or the effect of international conditions on the financial markets in the United States is such as to make it, in the judgment of the Underwriter, inadvisable or impracticable to market the Shares or enforce contracts for the sale of the Shares (ii) writing, (iii) trading in the Company's Common Stock shall have been suspended by the Commission or Nasdaq NASDAQ or trading in securities generally on the Nasdaq Stock Market, the NYSE or the NYSE MKT NASDAQ shall have been suspended, (iii) (iv) minimum or maximum prices for trading shall have been fixed, or maximum ranges for prices for securities (which includes the Company's Common Stock) shall have been required, on the Nasdaq Stock Market, the NYSE or NYSE MKT, NASDAQ, by such exchange or by order of the Commission or any other governmental authority having jurisdiction, (iv) (v) a banking moratorium shall have been declared by federal or state authorities, (v) there shall have occurred any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration authorities which prevents payment by the United States of a national emergency or war, any substantial change or development involving a prospective substantial change in United States or international political, financial or economic conditions or any other calamity or crisis, or an Underwriter pursuant to Section 3, (vi) the Company suffers is in material breach of any loss by strike, fire, flood, earthquake, accident of its representations, warranties or other calamity, whether covenants hereunder, (vii) the Underwriters shall have become aware after the date hereof, of events that are reasonably expected to result in (A) a Material Adverse Change, or not covered by insurance, that (B) a material adverse change in general market conditions, in each case, as would make it impracticable, in the Underwriter's Underwriters' reasonable judgment is material and adverse and makes it impractical or inadvisable judgement, to proceed with the completion offering, sale and/or delivery of the Securities or to enforce contracts made by the Underwriters for the sale of and payment for the Shares, Securities, or (vii) in the judgment (viii) a director or executive officer of the Underwriter, there has been, since the time of execution of this Agreement or since the respective dates as of which information Company: (A) is given in the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus, charged with a felony offense relating to any material adverse change in the assets, properties, condition, financial or otherwise, corporate matter arising from conduct relating to the Company; (B) becomes the subject of a public action or in the results of operations, business affairs or business prospects of investigation by a governmental body arising from conduct relating to the Company and its subsidiaries considered (or such governmental body announces that it intends to take any such action or undertake any such investigation); or (C) is enjoined, suspended or otherwise limited from serving as a whole, whether director or not arising in executive officer under the ordinary course of business. federal securities laws. Any such termination shall be without liability of any party to any other party except that the provisions of Section 5(a)(viii) 4(a)(vii) and Section 7 6 hereof shall at all times be effective and shall survive such termination. 29 31 (b) If the Underwriter Representative elects to terminate this Agreement as provided in this Section, the Company shall be notified promptly by the Underwriter Representative by telephone, confirmed by letter.
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Termination of this Agreement. (a) The
Underwriter Underwriters shall have the right to terminate this Agreement by giving notice to the Company as hereinafter specified at any time at or prior to the Closing
Date Date, if (i) the Company shall have failed, refused or
any Option Closing Date (as been unable, at or prior to the
Option Shares Closing Date, to perform any material agreement on its part to be
purchased on such Option Closing Date only), if in the reasonable discretion performed hereunder, (ii) any condition of th
...e Underwriter, (i) there has occurred any material adverse change in the securities markets or any event, act or occurrence that has materially disrupted, or in the opinion of the Underwriter, will in the future materially disrupt, the securities markets or there shall be such a material adverse change in general financial, political or economic conditions or the effect of international conditions on the financial markets in the United States Underwriters' obligations hereunder is such as to make it, in the judgment of the Underwriter, inadvisable or impracticable to market the Shares or enforce contracts for the sale of the Shares (ii) not fulfilled, (iii) trading in the Company's Common Stock shall have been suspended by the Commission or Nasdaq the NASDAQ Capital Market or trading in securities generally on the Nasdaq Stock Market, the NYSE or the NYSE MKT NASDAQ Capital Market shall have been suspended, (iii) (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 NASDAQ Capital Market, the NYSE or NYSE MKT, by such exchange Exchange or by order of the Commission or any other governmental authority having jurisdiction, (iv) jurisdiction (which includes the Company's Common Stock), or (v) a banking moratorium shall have been declared by federal or state authorities, (v) there shall have occurred any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration authorities which prevents payment by the United States of a national emergency or war, any substantial change or development involving a prospective substantial change in United States or international political, financial or economic conditions or any other calamity or crisis, or (vi) the Company suffers any loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, that in the Underwriter's reasonable judgment is material and adverse and makes it impractical or inadvisable an Underwriter pursuant to proceed with the completion of the sale of and payment for the Shares, or (vii) in the judgment of the Underwriter, there has been, since the time of execution of this Agreement or since the respective dates as of which information is given in the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus, any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects of the Company and its subsidiaries considered as a whole, whether or not arising in the ordinary course of business. Section 3. Any such termination shall be without liability of any party to any other party except that the provisions of Section 5(a)(viii) 4(a)(vii) and Section 7 6 hereof shall at all times be effective and shall survive such termination. 29 (b) If the Underwriter Representative elects to terminate this Agreement as provided in this Section, the Company shall be notified promptly by the Underwriter Representative by telephone, confirmed by letter.
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Termination of this Agreement. (a) The
Underwriter Underwriters shall have the right to terminate this Agreement by giving notice to the Company as hereinafter specified at any time at or prior to the Closing
Date Date, if (i) the Company shall have failed, refused or
any Option Closing Date (as been unable, at or prior to the
Option Shares Closing Date, to perform any material agreement on its part to be
purchased on such Option Closing Date only), if in the reasonable discretion performed hereunder, (ii) any condition of th
...e Underwriter, (i) there has occurred any material adverse change Underwriters' obligations set forth in Section 5 hereunder is not fulfilled or waived by the securities markets or any event, act or occurrence that has materially disrupted, or in the opinion of the Underwriter, will in the future materially disrupt, the securities markets or there shall be such a material adverse change in general financial, political or economic conditions or the effect of international conditions on the financial markets in the United States is such as to make it, in the judgment of the Underwriter, inadvisable or impracticable to market the Shares or enforce contracts for the sale of the Shares (ii) Representative, (iii) trading in the Company's Common Stock shall have been suspended by the Commission or Nasdaq the NASDAQ Capital Market or trading in securities generally on the Nasdaq Stock Market, the NYSE or the NYSE MKT NASDAQ Capital Market shall have been suspended, (iii) 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, the NYSE or NYSE MKT, NASDAQ Capital Market by such exchange or by order of the Commission or any other governmental authority having jurisdiction, jurisdiction (which includes the Company's Common Stock), or (iv) a banking moratorium shall have been declared by federal or state authorities, (v) there shall have occurred any attack on, outbreak or escalation authorities which prevents payment by an Underwriter pursuant to Section 3, in each case of hostilities or act (i) through (iv) herein, the effect of terrorism involving the United States, any declaration by the United States of a national emergency or war, any substantial change or development involving a prospective substantial change in United States or international political, financial or economic conditions or any other calamity or crisis, or (vi) the Company suffers any loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, that which, in the Underwriter's reasonable judgment is material and adverse and makes Representative's good faith judgment, would make it impractical or inadvisable impracticable to proceed with the completion offering, sale and/or delivery of the sale of and payment for the Shares, or (vii) in the judgment of the Underwriter, there has been, since the time of execution of this Agreement or since the respective dates Shares as of which information is given in contemplated by the Registration Statement, Statement and the Time of Sale Disclosure Package or the Final Prospectus, any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects of the Company and its subsidiaries considered as a whole, whether or not arising in the ordinary course of business. Prospectus. Any such termination shall be without liability of any party to any other party except that the provisions of Section 5(a)(viii) 4(a)(vii) and Section 7 6 hereof shall at all times be effective and shall survive such termination. 29 26 (b) If the Underwriter Representative elects to terminate this Agreement as provided in this Section, Section 8, the Company shall be notified promptly by the Underwriter Representative by telephone, confirmed by letter. letter as provided in Section 11.
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Termination of this Agreement. (a) The
Underwriter Underwriters shall have the right to terminate this Agreement by giving notice to the Company as hereinafter specified at any time at or prior to the Closing
Date Date, if (i) the Company shall have failed, refused or
any Option Closing Date (as been unable, at or prior to the
Option Shares Closing Date, to perform any material agreement on its part to be
purchased on such Option Closing Date only), if in the reasonable discretion performed hereunder, (ii) any condition of th
...e Underwriter, (i) there has occurred any material adverse change Underwriters' obligations hereunder is not fulfilled or waived by the Representative in the securities markets or any event, act or occurrence that has materially disrupted, or in the opinion of the Underwriter, will in the future materially disrupt, the securities markets or there shall be such a material adverse change in general financial, political or economic conditions or the effect of international conditions on the financial markets in the United States is such as to make it, in the judgment of the Underwriter, inadvisable or impracticable to market the Shares or enforce contracts for the sale of the Shares (ii) writing, (iii) trading in the Company's Common Stock shall have been suspended by the Commission or Nasdaq NASDAQ or trading in securities generally on the Nasdaq Stock Market, the NYSE or the NYSE MKT NASDAQ shall have been suspended, (iii) (iv) minimum or maximum prices for trading shall have been fixed, or maximum ranges for prices for securities (which includes the Company's Common Stock) shall have been required, on the Nasdaq Stock Market, the NYSE or NYSE MKT, NASDAQ, by such exchange or by order of the Commission or any other governmental authority having jurisdiction, (iv) (v) a banking moratorium shall have been declared by federal or state authorities, (v) there shall have occurred any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration authorities which prevents payment by the United States of a national emergency or war, any substantial change or development involving a prospective substantial change in United States or international political, financial or economic conditions or any other calamity or crisis, or an Underwriter pursuant to Section 3, (vi) the Company suffers is in material breach of any loss by strike, fire, flood, earthquake, accident of its representations, warranties or other calamity, whether covenants hereunder, (vii) the Underwriters shall have become aware after the date hereof, of events that are reasonably expected to result in (A) a Material Adverse Effect, or not covered by insurance, that (B) a material adverse change in general market conditions, in each case, as would make it impracticable, in the Underwriter's Underwriters' reasonable judgment is material and adverse and makes it impractical or inadvisable judgement, to proceed with the completion offering, sale and/or delivery of the Securities or to enforce contracts made by the Underwriters for the sale of and payment for the Shares, Securities, or (vii) in the judgment (viii) a director or executive officer of the Underwriter, there has been, since the time of execution of this Agreement or since the respective dates as of which information Company: (A) is given in the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus, charged with a felony offense relating to any material adverse change in the assets, properties, condition, financial or otherwise, corporate matter arising from conduct relating to the Company; (B) becomes the subject of a public action or in the results of operations, business affairs or business prospects of investigation by a governmental body arising from conduct relating to the Company and its subsidiaries considered (or such governmental body announces that it intends to take any such action or undertake any such investigation); or (C) is enjoined, suspended or otherwise limited from serving as a whole, whether director or not arising in executive officer under the ordinary course of business. federal securities laws. Any such termination shall be without liability of any party to any other party except that the provisions of Section 5(a)(viii) 4(a)(vii) and Section 7 6 hereof shall at all times be effective and shall survive such termination. 29 (b) If the Underwriter Representative elects to terminate this Agreement as provided in this Section, the Company shall be notified promptly by the Underwriter Representative by telephone, confirmed by letter. -23- 9. DEFAULT OF THE COMPANY. If the Company shall fail at the Closing Date or at any Option Closing Date to sell and deliver the Securities which it is obligated to sell hereunder, then this Agreement shall terminate without any liability on the part of the Underwriters or, except as provided in Section 4(a)(vii), any non-defaulting party. No action taken pursuant to this Section shall relieve the Company from liability, if any, in respect of such default.
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Termination of this Agreement. (a) The
Underwriter Representative shall have the right to terminate this Agreement by giving notice to the Company as hereinafter specified at any time at or prior to the Closing
Date or any Option Closing Date (as to the Option Shares to be purchased on such Option Closing Date only), Date, if in the
reasonable discretion of the
Underwriter, Representative, (i) there has occurred any material adverse change in the securities markets or any event, act or occurrence that has materially disrupted
..., or in the opinion of the Underwriter, Representative, will in the future materially disrupt, the securities markets or there shall be such a material adverse change in general financial, political or economic conditions or the effect of international conditions on the financial markets in the United States is such as to make it, in the judgment of the Underwriter, Representative, inadvisable or impracticable to market the Shares or enforce contracts for the sale of the Shares (ii) trading in the Company's Common Stock shall have been suspended by the Commission or Nasdaq the NYSE MKT or trading in securities generally on the Nasdaq Stock Market, the NASDAQ, NYSE or the NYSE MKT shall have been suspended, (iii) 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, the NASDAQ, NYSE or NYSE MKT, by such exchange or by order of the Commission or any other governmental authority having jurisdiction, (iv) a banking moratorium shall have been declared by federal or state authorities, (v) there shall have occurred any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration by the United States of a national emergency or war, any substantial change or development involving a prospective substantial change in United States or international political, financial or economic conditions or any other calamity or crisis, or (vi) the Company suffers any loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, that in the Underwriter's reasonable judgment is material and adverse and makes it impractical or inadvisable to proceed with the completion of the sale of and payment for the Shares, or (vii) in the reasonable judgment of the Underwriter, Representative, there has been, since the time of execution of this Agreement or since the respective dates as of which information is given in the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus, any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects of the Company and its subsidiaries considered as a whole, whether or not arising in the ordinary course of business. Any such termination shall be without liability of any party to any other party except that the provisions of Section 5(a)(viii) 5(a)(vii) and Section 7 hereof shall at all times be effective and shall survive such termination. 29 (b) If the Underwriter Representative elects to terminate this Agreement as provided in this Section, the Company shall be notified promptly by the Underwriter Representative by telephone, confirmed by letter. 26 10. Notices. Except as otherwise provided herein, all communications hereunder shall be in writing and, if to Representative, shall be mailed, delivered or telecopied to Roth Capital Partners, LLC, 800 San Clemente Drive, Suite 400, Newport Beach, CA 92660, telecopy number: (949) 720-7227, Attention: Managing Director, with a copy to Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., 666 Third Avenue, New York, NY 10017, telecopy number: (212) 983-3115, Attention: Ivan K. Blumenthal; and if to the Company, shall be mailed, delivered or telecopied to it at 3579 Valley Centre Drive, Suite 100, San Diego, California 92130, telecopy number: (858) 350-0300, Attention: Chief Executive Officer, with a copy to Cooley LLP, 4401 Eastgate Mall, San Diego, CA 92121, telecopy number: (858) 550-6420, Attention: Thomas A. Coll; 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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Termination of this Agreement.
(a) The Underwriter shall have Prior to the
right to terminate Closing Date, this Agreement
may be terminated by
giving the Representative by notice
given to the Company
as hereinafter specified if at any time
at (i) trading or
prior to the Closing Date or quotation in any
Option Closing Date (as to the Option Shares to be purchased on such Option Closing Date only), if in the reasonable discretion of the
Underwriter, (i) there has occurred any material adverse change in the Company's securities
... markets or any event, act or occurrence that has materially disrupted, or in the opinion of the Underwriter, will in the future materially disrupt, the securities markets or there shall be such a material adverse change in general financial, political or economic conditions or the effect of international conditions on the financial markets in the United States is such as to make it, in the judgment of the Underwriter, inadvisable or impracticable to market the Shares or enforce contracts for the sale of the Shares (ii) trading in the Company's Common Stock shall have been suspended or materially limited by the Commission or Nasdaq by the New York Stock Exchange, or trading in securities generally on the Nasdaq New York Stock Market, the NYSE or the NYSE MKT Exchange shall have been suspended, (iii) minimum suspended 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, the NYSE or NYSE MKT, by such exchange or by order of the Commission or any other governmental authority having jurisdiction, (iv) materially limited; (ii) a general banking moratorium shall have been declared by federal or state authorities, (v) New York authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States has occurred; (iii) in the judgment of the Representative there shall have occurred a Material Adverse Change, the effect of which is so material and adverse as to make it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the Final Offering Memorandum; or (iv) there shall have occurred any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, States or any declaration by crisis or calamity, or any substantial change in the United States of a national emergency or war, international financial markets, or any substantial change or development involving a prospective substantial change in the United States States' or international political, financial or economic conditions or any other calamity or crisis, or (vi) the Company suffers any loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, that conditions, as in the Underwriter's reasonable judgment of the Representative is material and adverse and makes it impractical impracticable or inadvisable to proceed with the completion offering, sale or delivery of the Securities in the manner and on the terms described in the Pricing Disclosure Package and the Final Offering Memorandum or to enforce contracts for the sale of and payment for the Shares, or (vii) in the judgment of the Underwriter, there has been, since the time of execution of securities. Any termination pursuant to this Agreement or since the respective dates as of which information is given in the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus, any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects of the Company and its subsidiaries considered as a whole, whether or not arising in the ordinary course of business. Any such termination Section 12 shall be without liability on the part of (a) the Company or any party Guarantor to any other party Initial Purchaser, except that the provisions of Section 5(a)(viii) Company and Section 7 hereof shall at all times be effective and shall survive such termination. 29 (b) If the Underwriter elects to terminate this Agreement as provided in this Section, the Company Guarantors shall be notified promptly by jointly and severally obligated to reimburse the Underwriter by telephone, confirmed by letter. expenses of the Representative and the Initial Purchasers pursuant to Sections 5, 7, 9 and 10 hereof or (b) any Initial Purchaser to the Company.
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Termination of this Agreement. (a)
The Underwriter You, as the Representatives of the several Underwriters, shall have the right to terminate this Agreement by giving notice
to the Company as hereinafter specified at any time at or prior to the
First Closing
Date or Date, and the option referred to in Section 2(b), if exercised, may be cancelled at any
Option Closing Date (as time prior to the
Option Shares 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 purchased on such Option Closing Date only), if in the reasonable discretion performed hereunder, (ii) any other condition of the Underwriter, (i) there has occurred any material adverse change in the securities markets or any event, act or occurrence that has materially disrupted, or in the opinion of the Underwriter, will in the future materially disrupt, the securities markets or there shall be such a material adverse change in general financial, political or economic conditions or the effect of international conditions Underwriters' obligations hereunder is not fulfilled, (iii) trading on the financial markets in the United States is such as to make it, in the judgment of the Underwriter, inadvisable or impracticable to market the Shares or enforce contracts for the sale of the Shares (ii) trading in the Company's Common Stock shall have been suspended by the Commission or Nasdaq or trading in securities generally on the Nasdaq NASDAQ Stock Market, the NYSE New York Stock Exchange or the NYSE MKT shall have been wholly suspended, (iii) (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 NASDAQ Stock Market, the NYSE New York Stock Exchange or the NYSE MKT, by such exchange Exchange or by order of the Commission or any other governmental authority having jurisdiction, (iv) Governmental Authority, (v) a banking moratorium shall have been declared by federal or state authorities, (v) or (vi) there shall have occurred any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration by the United States of a national emergency or war, any substantial change or development involving a prospective substantial change in United States or international political, financial or economic conditions markets or any other calamity or crisis, or (vi) the Company suffers any loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, that crisis that, in the Underwriter's reasonable judgment your judgment, is material and adverse and makes it impractical or inadvisable to proceed with the completion of the sale of and payment for the Shares, or (vii) in the judgment of the Underwriter, there has been, since the time of execution of this Agreement or since the respective dates as of which information is given in the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus, any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects of the Company and its subsidiaries considered as a whole, whether or not arising in the ordinary course of business. Securities. Any such termination shall be without liability of any party to any other party except that the provisions of Section 5(a)(viii) 3(h) and Section 7 5 hereof shall at all times be effective and shall survive such termination. 29 effective. (b) If the Underwriter elects you elect to terminate this Agreement as provided in this Section, the Company shall be notified promptly by the Underwriter you by telephone, confirmed by letter. 28 8. Default by the Company. If the Company shall fail at the First Closing Date to sell and deliver the number of Securities which it is obligated to sell hereunder, then this Agreement shall terminate without any liability on the part of any Underwriter or, except as provided in Section 3(h) and Section 5 hereof, any non defaulting party. No action taken pursuant to this Section 8 shall relieve the Company from liability, if any, in respect of such default.
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Termination of this Agreement.
(a) The Underwriter shall have Prior to the
right to terminate purchase of the Firm Shares by the Underwriters on the First Closing Date, this Agreement
may be terminated by
giving the Representatives by notice
given to the Company
as hereinafter specified if at any
time at time: (i) trading or
prior to the Closing Date or quotation in any
Option Closing Date (as to the Option Shares to be purchased on such Option Closing Date only), if in the reasonable discretion of the
Underwriter, (i) there ...has occurred any material adverse change in the Company's securities markets or any event, act or occurrence that has materially disrupted, or in the opinion of the Underwriter, will in the future materially disrupt, the securities markets or there shall be such a material adverse change in general financial, political or economic conditions or the effect of international conditions on the financial markets in the United States is such as to make it, in the judgment of the Underwriter, inadvisable or impracticable to market the Shares or enforce contracts for the sale of the Shares (ii) trading in the Company's Common Stock shall have been suspended or limited by the Commission or Nasdaq by the NASDAQ, or trading in securities generally on either the Nasdaq Stock Market, the NYSE NASDAQ or the NYSE MKT shall have been suspended, (iii) suspended or limited, or minimum or maximum prices for trading shall have been fixed, or maximum ranges for prices for securities shall have been required, generally established on the Nasdaq Stock Market, the NYSE or NYSE MKT, by any of such exchange or by order of the Commission or any other governmental authority having jurisdiction, (iv) stock exchanges; (ii) a general banking moratorium shall have been declared by federal any of federal, New York, or state authorities, (v) North Carolina authorities; (iii) there shall have occurred any attack on, outbreak or escalation of national or international hostilities or act of terrorism involving the United States, any declaration by crisis or calamity, or any change in the United States of a national emergency or war, international financial markets, or any substantial change or development involving a prospective substantial change in United States States' or international political, financial or economic conditions conditions, as in the judgment of the Representatives is material and adverse and makes it impracticable to market the Offered Shares in the manner and on the terms described in the Time of Sale Prospectus or the Prospectus or to enforce contracts for the sale of securities; (iv) in the judgment of the Representatives there shall have occurred any material adverse change, or any other calamity development or crisis, event involving a prospective material adverse change, in the condition, financial or (vi) otherwise, or in the business, properties, earnings, results of operations or prospects of the Company suffers any and its Subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business; or (v) the Company shall have sustained a loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, that in the Underwriter's reasonable judgment is material and adverse and makes it impractical or inadvisable to proceed with the completion calamity of the sale of and payment for the Shares, or (vii) such character as in the judgment of the Underwriter, there has been, since Representatives may interfere materially with the time conduct of execution of this Agreement or since the respective dates as of which information is given in the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus, any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects and operations of the Company and its subsidiaries considered as a whole, regardless of whether or not arising in the ordinary course of business. such loss shall have been insured. Any such termination pursuant to this Section 14 shall be without liability on the part of any party (a) the Company to any other party Underwriter, except that the Company shall be obligated to reimburse the expenses of the Representatives and the Underwriters pursuant to Section 6 or Section 9 hereof or (b) any Underwriter to the Company; provided, however, that the provisions of Section 5(a)(viii) 11 and Section 7 hereof 12 shall at all times be effective and shall survive such termination. 29 -41- 15. No Advisory or Fiduciary Relationship. Each of the Company and Selling Shareholder acknowledges and agrees that (a) the purchase and sale of the Offered Shares pursuant to this Agreement, including the determination of the public offering price of the Offered Shares and any related discounts and commissions, is an arm's-length commercial transaction between the Company and the Selling Shareholder, on the one hand, and the several Underwriters, on the other hand, (b) If in connection with the offering contemplated hereby and the process leading to such transaction, each Underwriter elects is and has been acting solely as a principal and is not the agent or fiduciary of the Company or the Selling Shareholder, or their respective stockholders, creditors, employees or any other party, as applicable, (c) no Underwriter has assumed or will assume an advisory or fiduciary responsibility in favor of the Company or Selling Shareholder with respect to terminate this Agreement as provided the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company or Selling Shareholder on other matters) and no Underwriter has any obligation to the Company or Selling Shareholder with respect to the offering contemplated hereby except the obligations expressly set forth in this Section, Agreement, (d) the Underwriters and their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Company shall be notified promptly by and the Underwriter by telephone, confirmed by letter. Selling Shareholder, and (e) the Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to the offering contemplated hereby and the Company and Selling Shareholder, as applicable, have consulted their own respective legal, accounting, regulatory and tax advisors to the extent the Company and Selling Shareholder, as applicable, deemed appropriate.
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Termination of this Agreement. (a) The
Underwriter Underwriters shall have the right to terminate this Agreement by giving notice to the Company as hereinafter specified at any time at or prior to the Closing
Date Date, if (i) the Company shall have failed, refused or
any Option Closing Date (as been unable, at or prior to the
Option Shares Closing Date, to perform any material agreement on its part to be
purchased on such Option Closing Date only), if in the reasonable discretion performed hereunder, (ii) any condition of th
...e Underwriter, (i) there has occurred any material adverse change in the securities markets or any event, act or occurrence that has materially disrupted, or in the opinion of the Underwriter, will in the future materially disrupt, the securities markets or there shall be such a material adverse change in general financial, political or economic conditions or the effect of international conditions on the financial markets in the United States Underwriters' obligations hereunder is such as to make it, in the judgment of the Underwriter, inadvisable or impracticable to market the Shares or enforce contracts for the sale of the Shares (ii) not fulfilled, (iii) trading in the Company's Common Stock shall have been suspended by the Commission or Nasdaq the NYSE MKT or trading in securities generally on the Nasdaq Stock Market, the NYSE or the NYSE MKT shall have been suspended, (iii) (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, the NYSE or NYSE MKT, by such exchange Exchange or by order of the Commission or any other governmental authority having jurisdiction, (iv) jurisdiction (which includes the Company's Common Stock), or (v) a banking moratorium shall have been declared by federal or state authorities, (v) there shall have occurred any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration authorities which prevents payment by the United States of a national emergency or war, any substantial change or development involving a prospective substantial change in United States or international political, financial or economic conditions or any other calamity or crisis, or (vi) the Company suffers any loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, that in the Underwriter's reasonable judgment is material and adverse and makes it impractical or inadvisable an Underwriter pursuant to proceed with the completion of the sale of and payment for the Shares, or (vii) in the judgment of the Underwriter, there has been, since the time of execution of this Agreement or since the respective dates as of which information is given in the Registration Statement, the Time of Sale Disclosure Package or the Final Prospectus, any material adverse change in the assets, properties, condition, financial or otherwise, or in the results of operations, business affairs or business prospects of the Company and its subsidiaries considered as a whole, whether or not arising in the ordinary course of business. Section 3. Any such termination shall be without liability of any party to any other party except that the provisions of Section 5(a)(viii) 4(a)(vii) and Section 7 6 hereof shall at all times be effective and shall survive such termination. 29 (b) If the Underwriter elects Underwriters elect to terminate this Agreement as provided in this Section, the Company shall be notified promptly by the Underwriter Underwriters by telephone, confirmed by letter. 25 9. DEFAULT BY THE COMPANY. If the Company shall fail at the Closing Date or at the Option Closing Date to sell and deliver the Securities which it is obligated to sell hereunder, then this Agreement shall terminate without any liability on the part of the Underwriters or, except as provided in Section 4(a)(vii), any non-defaulting party. No action taken pursuant to this Section shall relieve the Company from liability, if any, in respect of such default.
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