Underwriter Default Clause Example with Variations from Business Contracts

Underwriter Default. (a) If any Underwriter or Underwriters shall default in its or their obligation to purchase Firm Shares hereunder, and if the securities with respect to Securities which such default relates (the "Default Securities") do not (after giving effect to arrangements, if any, made by the Representative pursuant to subsection (b) below) exceed in the aggregate 10% of the number of Firm Shares, each non-defaulting Underwriter, acting severally and not jointly, agrees it has agreed to purchase from hereunder at the Company that number Time of Default Securities that bears Delivery, the same proportion of the total number of Default Securities then being purchased as the number of Firm Shares set forth opposite the name of such Underwriter on Schedule I hereto bears to the aggregate number of Firm Shares set forth opposite the names of the non-defaulting Underwriters, subject, however, to such adjustments to eliminate fractional shares as the Representative in its sole discretion shall make. (b) In the event that the aggregate number of Default Securities exceeds 10% of the number of Firm Shares, the Representative Representatives may in its their discretion arrange for themselves them or for another party or other parties (including any non-defaulting Underwriter or Underwriters who so agree) to purchase the Default such Securities on the terms contained herein. In the event that If within 48 thirty-six (36) hours after such a default by any Underwriter the Representative does Representatives do not arrange for the purchase of the Default Securities as provided in this Section 9, this Agreement shall thereupon terminate, without liability on the part of such Securities, then the Company with respect thereto (except in each case as provided in Sections 5, 7, 8, 9 and 11(d)) shall be entitled to a further period of thirty-six (36) hours within which to procure another party or the Underwriters, but nothing in this Agreement shall relieve a defaulting Underwriter or Underwriters of its or their liability, if any, other parties satisfactory to the other Underwriters and the Company for damages occasioned by its or their default hereunder. (c) Representatives to purchase such Securities on such terms. In the event that, within the respective prescribed periods, the Representatives notify the Company that any Default Securities are to be purchased by 18 they have so arranged for the non-defaulting Underwriters, purchase of such Securities, or are to be purchased by another party or parties as aforesaid, the Representative Company notifies the Representatives that it has so arranged for the purchase of such Securities, the Representatives or the Company shall have the right to postpone the Closing Date Time of Delivery for a period, period of not exceeding five (5) Business Days, more than seven (7) days, in order to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus Prospectus, or in any other documents and or arrangements, and the Company agrees to file promptly any amendment amendments or supplement supplements to the Registration Statement or the Prospectus which, which in the reasonable opinion of Underwriters' Counsel, the Representatives may thereby be made necessary or advisable. necessary. The term "Underwriter" as used in this Agreement shall include any party person substituted under this Section 9 10 with like effect as if it such person had originally been a party to this Agreement with respect to such Firm Shares. Securities. (b) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the Representatives and the Company as provided in subsection (a) above, the aggregate number of such Securities which remains unpurchased does not exceed one eleventh (1/11th) of the aggregate number of all the Securities to be purchased at the Time of Delivery, then the Company shall have the right to require each non-defaulting Underwriter to purchase the number of shares which such Underwriter agreed to purchase hereunder at the Time of Delivery and, in addition, to require each non-defaulting Underwriter to purchase its pro rata share (based on the number of Securities which such Underwriter agreed to purchase hereunder) of the Securities of such defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing herein shall relieve a defaulting Underwriter from liability for its default. (c) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the Representatives and the Company as provided in subsection (a) above, the aggregate number of such Securities which remains unpurchased exceeds one eleventh (1/11th) of the aggregate number of all the Securities to be purchased at the Time of Delivery, or if the Company shall not exercise the right described in subsection (b) above to require non-defaulting Underwriters to purchase Securities of a defaulting Underwriter or Underwriters, then this Agreement shall thereupon terminate, without liability on the part of any non-defaulting Underwriter or the Company, except for the expenses to be borne by the Company and the Underwriters as provided in Section 7 hereof and the indemnity and contribution agreements in Section 9 hereof; but nothing herein shall relieve a defaulting Underwriter from any liability it may have to the Company or any non-defaulting Underwriter for its default. 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Underwriter Default. (a) If any Underwriter or Underwriters shall default in its or their obligation to purchase the Firm Shares Units hereunder, and if the securities Firm Units with respect to which such default 35 relates (the "Default Securities") Units") do not (after giving effect to arrangements, if any, made by the Representative pursuant to subsection (b) below) exceed in the aggregate 10% of the number of Firm Shares, Units to be purchased on such date, each non-defaulting Underwriter, acting severally... and not jointly, agrees to purchase from the Company that number of Default Securities Units that bears the same proportion of the total number of Default Securities Units then being purchased as the number of Firm Shares Units set forth opposite the name of such Underwriter on Schedule I hereto bears to the aggregate number of Firm Shares Units set forth opposite the names of the non-defaulting Underwriters, subject, however, to such adjustments to eliminate fractional shares as the Representative in its sole discretion shall make. make provided that the total number of Default Units shall not be reduced by such adjustment. (b) In the event that the aggregate number of Default Securities Units exceeds 10% of the number of the Firm Shares, Units to be purchased on such date, the Representative may in its discretion arrange for themselves itself or for another party or parties (including any non-defaulting Underwriter or Underwriters who so agree) to purchase the Default Securities Units on the terms contained herein. In the event that within 48 hours after such a default the Representative does not arrange for the purchase of the Default Securities Units as provided in this Section 9, (i) this Agreement shall thereupon terminate, terminate if such Default Units relate to the Firm Units, without liability on the part of the Company with respect thereto (except in each case as provided in Sections 5, 7, 8, 9 8 and 11(d)) or the Underwriters, but nothing in this Agreement shall relieve a defaulting Underwriter or Underwriters of its or their liability, if any, to the other Underwriters and the Company for damages occasioned by its or their default hereunder. hereunder or (ii) with respect to any Option Closing Date which occurs after the Closing Date, the obligation of the Underwriters to purchase and of the Company to sell the Option Units that were to have been purchased and sold on such Option Closing Date, shall terminate without liability on the part of any non defaulting Underwriter. (c) In the event that any Default Securities Units are to be purchased by the non-defaulting Underwriters, or are to be purchased by another party or parties as aforesaid, the Representative or the Company shall have the right to postpone the Closing Date for a period, not exceeding five (5) Business Days, in order to effect whatever changes may thereby be necessary in the Registration Statement or the Prospectus or in any other documents and arrangements, and the Company agrees to file promptly any amendment or supplement to the Registration Statement or the Prospectus which, in the reasonable opinion of Underwriters' Counsel, may thereby be made necessary or advisable. The term "Underwriter" as used in this Agreement shall include any party substituted under this Section 9 with like effect as if it had originally been a party to this Agreement with respect to such Firm Shares. Units. View More

Underwriter Default. (a) If any Underwriter or Underwriters shall default in its or their obligation to purchase Firm Shares hereunder, and if the securities with respect to Securities which such default relates (the "Default Securities") do not (after giving effect to arrangements, if any, made by the Representative pursuant to subsection (b) below) exceed in the aggregate 10% of the number of Firm Shares, each non-defaulting Underwriter, acting severally and not jointly, agrees it has agreed to purchase from hereunder at the Company that number Time of Default Securities that bears Delivery, the same proportion of the total number of Default Securities then being purchased as the number of Firm Shares set forth opposite the name of such Underwriter on Schedule I hereto bears to the aggregate number of Firm Shares set forth opposite the names of the non-defaulting Underwriters, subject, however, to such adjustments to eliminate fractional shares as the Representative in its sole discretion shall make. (b) In the event that the aggregate number of Default Securities exceeds 10% of the number of Firm Shares, the Representative 18 Representatives may in its their discretion arrange for themselves them or for another party or other parties (including any non-defaulting Underwriter or Underwriters who so agree) to purchase the Default such Securities on the terms contained herein. In the event that If within 48 thirty-six hours after such a default by any Underwriter the Representative does Representatives do not arrange for the purchase of the Default Securities as provided in this Section 9, this Agreement shall thereupon terminate, without liability on the part of such Securities, then the Company with respect thereto (except in each case as provided in Sections 5, 7, 8, 9 and 11(d)) shall be entitled to a further period of thirty-six hours within which to procure another party or the Underwriters, but nothing in this Agreement shall relieve a defaulting Underwriter or Underwriters of its or their liability, if any, other parties satisfactory to the other Underwriters and the Company for damages occasioned by its or their default hereunder. (c) Representatives to purchase such Securities on such terms. In the event that, within the respective prescribed periods, the Representatives notify the Company that any Default Securities are to be purchased by they have so arranged for the non-defaulting Underwriters, purchase of such Securities, or are to be purchased by another party or parties as aforesaid, the Representative Company notifies the Representatives that it has so arranged for the purchase of such Securities, the Representatives or the Company shall have the right to postpone the Closing Date Time of Delivery for a period, period of not exceeding five (5) Business Days, more than seven days, in order to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus Prospectus, or in any other documents and or arrangements, and the Company agrees to file promptly any amendment amendments or supplement supplements to the Registration Statement or the Prospectus which, which in the reasonable opinion of Underwriters' Counsel, the Representatives may thereby be made necessary or advisable. necessary. The term "Underwriter" as used in this Agreement shall include any party person substituted under this Section 9 10 with like effect as if it such person had originally been a party to this Agreement with respect to such Firm Shares. Securities. (b) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the Representatives and the Company as provided in subsection (a) above, the aggregate number of such Securities which remains unpurchased does not exceed one eleventh of the aggregate number of all the Securities to be purchased at the Time of Delivery, then the Company shall have the right to require each non-defaulting Underwriter to purchase the number of shares which such Underwriter agreed to purchase hereunder at the Time of Delivery and, in addition, to require each non-defaulting Underwriter to purchase its pro rata share (based on the number of Securities which such Underwriter agreed to purchase hereunder) of the Securities of such defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing herein shall relieve a defaulting Underwriter from liability for its default. (c) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the Representatives and the Company as provided in subsection (a) above, the aggregate number of such Securities which remains unpurchased exceeds one eleventh of the aggregate number of all the Securities to be purchased at the Time of Delivery, or if the Company shall not exercise the right described in subsection (b) above to require non-defaulting Underwriters to purchase Securities of a defaulting Underwriter or Underwriters, then this Agreement shall thereupon terminate, without liability on the part of any non-defaulting Underwriter or the Company, except for the expenses to be borne by the Company and the Underwriters as provided in Section 7 hereof and the indemnity and contribution agreements in Section 9 hereof; but nothing herein shall relieve a defaulting Underwriter from any liability it may have to the Company or any non-defaulting Underwriter for its default. 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Underwriter Default. (a) If any Underwriter or Underwriters shall default in its or their obligation to purchase Firm Shares hereunder, and if the securities with respect to Securities which such default relates (the "Default Securities") do not (after giving effect to arrangements, if any, made by the Representative pursuant to subsection (b) below) exceed in the aggregate 10% of the number of Firm Shares, each non-defaulting Underwriter, acting severally and not jointly, agrees it has agreed to purchase from hereunder at the Company that number Time of Default Securities that bears Delivery, the same proportion of the total number of Default Securities then being purchased as the number of Firm Shares set forth opposite the name of such Underwriter on Schedule I hereto bears to the aggregate number of Firm Shares set forth opposite the names of the non-defaulting Underwriters, subject, however, to such adjustments to eliminate fractional shares as the Representative in its sole discretion shall make. (b) In the event that the aggregate number of Default Securities exceeds 10% of the number of Firm Shares, the Representative Representatives may in its their discretion arrange for themselves them or for another party or other parties (including any non-defaulting Underwriter or Underwriters who so agree) to purchase the Default such Securities on the terms contained herein. In the event that If within 48 thirty-six hours after such a default by any Underwriter the Representative does Representatives do not arrange for the purchase of the Default Securities as provided in this Section 9, this Agreement shall thereupon terminate, without liability on the part of such Securities, then the Company with respect thereto (except in each case as provided in Sections 5, 7, 8, 9 and 11(d)) shall be entitled to a further period of thirty-six hours within which to procure another party or the Underwriters, but nothing in this Agreement shall relieve a defaulting Underwriter or Underwriters of its or their liability, if any, other parties satisfactory to the other Underwriters and the Company for damages occasioned by its or their default hereunder. (c) Representatives to purchase such Securities on such terms. In the event that, within the respective prescribed periods, the Representatives notify the Company that any Default Securities are to be purchased by they have so arranged for the non-defaulting Underwriters, purchase of such Securities, or are to be purchased by another party or parties as aforesaid, the Representative Company notifies the Representatives that it has so arranged for the purchase of such Securities, the Representatives or the Company shall have the right to postpone the Closing Date Time of Delivery for a period, period of not exceeding five (5) Business Days, more than seven days, in order to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus Prospectus, or in any other documents and or arrangements, and the Company agrees to file promptly any amendment amendments or supplement supplements to the Registration Statement or the Prospectus which, which in the reasonable opinion of Underwriters' Counsel, the Representatives may thereby be made necessary or advisable. necessary. The term "Underwriter" as used in this Agreement shall include any party person substituted under this Section 9 10 with like effect as if it such person had originally been a party to this Agreement with respect to such Firm Shares. Securities. (b) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the Representatives and the Company as provided in subsection (a) above, the aggregate number of such Securities which remains unpurchased does not exceed one eleventh of the aggregate number of all the Securities to be purchased at the Time of Delivery, then the Company shall have the right to require each non-defaulting Underwriter to purchase the number of shares which such Underwriter agreed to purchase hereunder at the Time of Delivery and, in addition, to require each non-defaulting Underwriter to purchase its pro rata share (based on the number of Securities which such Underwriter agreed to purchase hereunder) of the Securities of such defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing herein shall relieve a defaulting Underwriter from liability for its default. (c) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the Representatives and the Company as provided in subsection (a) above, the aggregate number of such Securities which remains unpurchased exceeds one eleventh of the aggregate number of all the Securities to be purchased 19 at the Time of Delivery, or if the Company shall not exercise the right described in subsection (b) above to require non-defaulting Underwriters to purchase Securities of a defaulting Underwriter or Underwriters, then this Agreement shall thereupon terminate, without liability on the part of any non-defaulting Underwriter or the Company, except for the expenses to be borne by the Company and the Underwriters as provided in Section 7 hereof and the indemnity and contribution agreements in Section 9 hereof; but nothing herein shall relieve a defaulting Underwriter from any liability it may have to the Company or any non-defaulting Underwriter for its default. 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Underwriter Default. (a) If any Underwriter or Underwriters shall default in its or their obligation to purchase Firm Shares hereunder, and if the securities with respect to Securities which such default relates (the "Default Securities") do not (after giving effect to arrangements, if any, made by the Representative pursuant to subsection (b) below) exceed in the aggregate 10% of the number of Firm Shares, each non-defaulting Underwriter, acting severally and not jointly, agrees it has agreed to purchase from hereunder at the Company that number Time of Default Securities that bears Delivery, the same proportion of the total number of Default Securities then being purchased as the number of Firm Shares set forth opposite the name of such Underwriter on Schedule I hereto bears to the aggregate number of Firm Shares set forth opposite the names of the non-defaulting Underwriters, subject, however, to such adjustments to eliminate fractional shares as the Representative in its sole discretion shall make. (b) In the event that the aggregate number of Default Securities exceeds 10% of the number of Firm Shares, the Representative Representatives may in its their discretion arrange for themselves them or for another party or other parties (including any non-defaulting Underwriter or Underwriters who so agree) to purchase the Default such Securities on the terms contained herein. In the event that If within 48 thirty-six hours after such a default by any Underwriter the Representative does Representatives do not arrange for the purchase of the Default Securities as provided in this Section 9, this Agreement shall thereupon terminate, without liability on the part of such Securities, then the Company with respect thereto (except in each case as provided in Sections 5, 7, 8, 9 and 11(d)) shall be entitled to a further period of thirty-six hours within which to procure another party or the Underwriters, but nothing in this Agreement shall relieve a defaulting Underwriter or Underwriters of its or their liability, if any, other parties satisfactory to the other Underwriters and the Company for damages occasioned by its or their default hereunder. (c) Representatives to purchase such Securities on such terms. In the event that, within the respective prescribed periods, the Representatives notify the Company that any Default Securities are to be purchased by they have so arranged for the non-defaulting Underwriters, purchase of such Securities, or are to be purchased by another party or parties as aforesaid, the Representative Company notifies the Representatives that it has so arranged for the purchase of such Securities, the Representatives or the Company shall have the right to postpone the Closing Date Time of Delivery for a period, period of not exceeding five (5) Business Days, more than seven days, in order to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus Prospectus, or in any other documents and or arrangements, and the Company agrees to file promptly any amendment amendments or supplement supplements to the Registration Statement or the Prospectus which, which in the reasonable opinion of Underwriters' Counsel, the Representatives may thereby be made necessary or advisable. necessary. The term "Underwriter" as used in this Agreement shall include any party person substituted under this Section 9 10 with like effect as if it such person had originally been a party to this Agreement with respect to such Firm Shares. Securities. (b) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the Representatives and the Company as provided in subsection (a) above, the aggregate number of such Securities which remains unpurchased does not exceed one eleventh of the aggregate number of all the Securities to be purchased at the Time of Delivery, then the Company shall have the right to require each non-defaulting Underwriter to purchase the number of shares which such Underwriter agreed to purchase hereunder at the Time of Delivery and, in addition, to require each non-defaulting Underwriter to purchase its pro rata share (based on the number of Securities which such Underwriter agreed to purchase hereunder) of the Securities of such defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing herein shall relieve a defaulting Underwriter from liability for its default. 19 (c) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the Representatives and the Company as provided in subsection (a) above, the aggregate number of such Securities which remains unpurchased exceeds one eleventh of the aggregate number of all the Securities to be purchased at the Time of Delivery, or if the Company shall not exercise the right described in subsection (b) above to require non-defaulting Underwriters to purchase Securities of a defaulting Underwriter or Underwriters, then this Agreement shall thereupon terminate, without liability on the part of any non-defaulting Underwriter or the Company, except for the expenses to be borne by the Company and the Underwriters as provided in Section 7 hereof and the indemnity and contribution agreements in Section 9 hereof; but nothing herein shall relieve a defaulting Underwriter from any liability it may have to the Company or any non-defaulting Underwriter for its default. 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Underwriter Default. (a) If any Underwriter or Underwriters shall default in its or their obligation to purchase Firm Shares Units hereunder, and if the securities Securities with respect to which such default relates (the "Default Securities") do not (after giving effect to arrangements, if any, made by the Representative pursuant to subsection (b) below) exceed in the aggregate 10% of the number of Firm Shares, Units, each non-defaulting Underwriter, acting severally and not jointly, agrees to purchase from the... Company that number of Default Securities that bears the same proportion of to the total number of Default Securities then being purchased as the number of Firm Shares Units set forth opposite the name of such Underwriter on Schedule I A hereto bears to the aggregate number of Firm Shares Units set forth opposite the names of the non-defaulting Underwriters, Underwriters; subject, however, to such adjustments to eliminate fractional shares as the Representative in its sole discretion shall make. (b) In the event that the aggregate number of Default Securities exceeds 10% of the number of Firm Shares, Units, the Representative may in its discretion arrange for themselves itself or for another party or parties (including any non-defaulting Underwriter or Underwriters who so agree) to purchase the Default Securities on the terms contained herein. In the event that within 48 hours five (5) calendar days after such a default the Representative does not arrange for the purchase of the Default Securities as provided in this Section 9, this Agreement shall thereupon terminate, without liability on the part of the Company with respect thereto (except in each case as provided in Sections 5, 7, 8, 9 and 11(d)) or the Underwriters, but nothing in this Agreement shall relieve a defaulting Underwriter or Underwriters of its or their liability, if any, to the other Underwriters and the Company for damages occasioned by its or their default hereunder. (c) In the event that any Default Securities are to be purchased by the non-defaulting Underwriters, or are to be purchased by another party or parties as aforesaid, the Representative or the Company shall have the right to postpone the Closing Date for a period, not exceeding five (5) Business Days, in order to effect whatever changes may thereby be necessary in the Registration Statement or the Prospectus or in any other documents and arrangements, and the Company agrees to file promptly any amendment or supplement to the Registration Statement or the Prospectus which, in the reasonable opinion of Underwriters' Counsel, may thereby be made necessary or advisable. The term "Underwriter" as used in this Agreement shall include any party substituted under this Section 9 with like effect as if it had originally been a party to this Agreement with respect to such Firm Shares. Units. 29 10. Survival of Representations and Agreements. All representations, warranties, covenants and agreements of the Company and the Underwriters contained in this Agreement or in certificates of officers of the Company submitted pursuant hereto, including, without limitation, the agreements contained in Sections 5, 10, 14 and 15, the indemnity agreements contained in Section 7 and the contribution agreements contained in Section 8, shall remain operative and in full force and effect regardless of any investigation made by or on behalf of any Underwriter or any controlling Person thereof or by or on behalf of the Company, any of its officers or directors or any controlling Person thereof, and shall survive delivery of and payment for the Securities to and by the Underwriters. The representations and warranties contained in Section 2 and the covenants and agreements contained in Sections 4, 5, 7, 8, 10, 14 and 15 shall survive any termination of this Agreement, including termination pursuant to Sections 9 or 11. For the avoidance of doubt, in the event of termination the Underwriters will receive only out-of-pocket accountable expenses actually incurred subject to the limit in Section 11(d) below as well as the right of first refusal in compliance with FINRA Rules 5110(f)(2)(D)(i), 5110(f)(2)(D)(ii)(a) and 5110(f)(2)(D)(ii)(b). View More

Underwriter Default. (a) If any Underwriter or Underwriters shall default in its or their obligation to purchase Firm Shares hereunder, and if the securities with respect to Securities which such default relates (the "Default Securities") do not (after giving effect to arrangements, if any, made by the Representative pursuant to subsection (b) below) exceed in the aggregate 10% of the number of Firm Shares, each non-defaulting Underwriter, acting severally and not jointly, agrees it has agreed to purchase from hereunder at the Company that number Time of Default Securities that bears Delivery, the same proportion of the total number of Default Securities then being purchased as the number of Firm Shares set forth opposite the name of such Underwriter on Schedule I hereto bears to the aggregate number of Firm Shares set forth opposite the names of the non-defaulting Underwriters, subject, however, to such adjustments to eliminate fractional shares as the Representative in its sole discretion shall make. (b) In the event that the aggregate number of Default Securities exceeds 10% of the number of Firm Shares, the Representative Representatives may in its their discretion arrange for themselves them or for another party or other parties (including any non-defaulting Underwriter or Underwriters who so agree) to purchase the Default such Securities on the terms contained herein. In the event that If within 48 thirty-six hours after such a default by any Underwriter the Representative does Representatives do not arrange for the purchase of the Default Securities as provided in this Section 9, this Agreement shall thereupon terminate, without liability on the part of such 18 Securities, then the Company with respect thereto (except in each case as provided in Sections 5, 7, 8, 9 and 11(d)) shall be entitled to a further period of thirty-six hours within which to procure another party or the Underwriters, but nothing in this Agreement shall relieve a defaulting Underwriter or Underwriters of its or their liability, if any, other parties satisfactory to the other Underwriters and the Company for damages occasioned by its or their default hereunder. (c) Representatives to purchase such Securities on such terms. In the event that, within the respective prescribed periods, the Representatives notify the Company that any Default Securities are to be purchased by they have so arranged for the non-defaulting Underwriters, purchase of such Securities, or are to be purchased by another party or parties as aforesaid, the Representative Company notifies the Representatives that it has so arranged for the purchase of such Securities, the Representatives or the Company shall have the right to postpone the Closing Date Time of Delivery for a period, period of not exceeding five (5) Business Days, more than seven days, in order to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus Prospectus, or in any other documents and or arrangements, and the Company agrees to file promptly any amendment amendments or supplement supplements to the Registration Statement or the Prospectus which, which in the reasonable opinion of Underwriters' Counsel, the Representatives may thereby be made necessary or advisable. necessary. The term "Underwriter" as used in this Agreement shall include any party person substituted under this Section 9 10 with like effect as if it such person had originally been a party to this Agreement with respect to such Firm Shares. Securities. (b) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the Representatives and the Company as provided in subsection (a) above, the aggregate number of such Securities which remains unpurchased does not exceed one eleventh of the aggregate number of all the Securities to be purchased at the Time of Delivery, then the Company shall have the right to require each non-defaulting Underwriter to purchase the number of shares which such Underwriter agreed to purchase hereunder at the Time of Delivery and, in addition, to require each non-defaulting Underwriter to purchase its pro rata share (based on the number of Securities which such Underwriter agreed to purchase hereunder) of the Securities of such defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing herein shall relieve a defaulting Underwriter from liability for its default. (c) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the Representatives and the Company as provided in subsection (a) above, the aggregate number of such Securities which remains unpurchased exceeds one eleventh of the aggregate number of all the Securities to be purchased at the Time of Delivery, or if the Company shall not exercise the right described in subsection (b) above to require non-defaulting Underwriters to purchase Securities of a defaulting Underwriter or Underwriters, then this Agreement shall thereupon terminate, without liability on the part of any non-defaulting Underwriter or the Company, except for the expenses to be borne by the Company and the Underwriters as provided in Section 7 hereof and the indemnity and contribution agreements in Section 9 hereof; but nothing herein shall relieve a defaulting Underwriter from any liability it may have to the Company or any non-defaulting Underwriter for its default. 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Underwriter Default. (a) If any Underwriter or Underwriters shall default in its or their obligation to purchase Firm Shares hereunder, and if the securities Securities with respect to which such default relates (the "Default Securities") do not (after giving effect to arrangements, if any, made by the Representative pursuant to subsection (b) below) exceed in the aggregate 10% of the number of Firm Shares, each non-defaulting Underwriter, acting severally and not jointly, agrees to purchase from the Company that... number of Default Securities that bears the same proportion of to the total number of Default Securities then being purchased as the number of Firm Shares set forth opposite the name of such Underwriter on Schedule I A hereto bears to the aggregate number of Firm Shares set forth opposite the names of the non-defaulting Underwriters, Underwriters; subject, however, to such adjustments to eliminate fractional shares as the Representative in its sole discretion shall make. (b) In the event that the aggregate number of Default Securities exceeds 10% of the number of Firm Shares, the Representative may in its discretion arrange for themselves itself or for another party or parties (including any non-defaulting Underwriter or Underwriters who so agree) to purchase the Default Securities on the terms contained herein. In the event that within 48 hours five (5) calendar days after such a default the Representative does not arrange for the purchase of the Default Securities as provided in this Section 9, 10, this Agreement shall thereupon terminate, terminate by the Underwriter or Underwriters, without liability on the part of the Company with respect thereto (except in each case as provided in Sections 5, 7, 6, 8, 9 9, 10 and 11(d)) 12(d)) or the Underwriters, but nothing in this Agreement shall relieve a defaulting Underwriter or Underwriters of its or their liability, if any, to the other Underwriters and the Company for damages occasioned by its or their default hereunder. (c) In the event that any Default Securities are to be purchased by the non-defaulting Underwriters, or are to be purchased by another party or parties as aforesaid, the Representative or the Company shall have the right to postpone the Closing Date for a period, not exceeding five (5) Business Days, in order to effect whatever changes may thereby be necessary in the Registration Statement or the Prospectus or in any other documents and arrangements, and the Company agrees to file promptly any amendment or supplement to the Registration Statement or the Prospectus which, in the reasonable opinion of Underwriters' Counsel, may thereby be made necessary or advisable. The term "Underwriter" as used in this Agreement shall include any party substituted under this Section 9 10 with like effect as if it had originally been a party to this Agreement with respect to such Firm Shares. Shares; and shall further include any FINRA-member broker-dealer that has been engaged by the Representatives pursuant to an executed, written agreement with the Representatives to act as a selected dealer for Offering, which executed written agreements shall (in order to fall within the scope of this Section 10) have been provided to the Company prior to the execution of this Agreement 11. Survival of Representations and Agreements. All representations, warranties, covenants and agreements of the Company and the Underwriters contained in this Agreement or in certificates of officers of the Company submitted pursuant hereto, including, without limitation, the agreements contained in Sections 6, 11, 15 and 16, the indemnity agreements contained in Section 8 and the contribution agreements contained in Section 9, shall remain operative and in full force and effect regardless of any investigation made by or on behalf of any Underwriter or any controlling Person thereof or by or on behalf of the Company, any of its officers or directors or any controlling Person thereof, and shall survive delivery of and payment for the Securities to and by the Underwriters. The representations and warranties contained in Section 2 and the covenants and agreements contained in Sections 4, 6, 8, 9, 11, 15 and 16 shall survive any termination of this Agreement, including termination pursuant to Sections 10 or 12. For the avoidance of doubt, in the event of termination the Underwriters will receive only out-of-pocket accountable expenses actually incurred subject to the limit in Section 12(d) below as well as the right of first refusal in compliance with FINRA Rules 5110(f)(2)(D)(i), 5110(f)(2)(D)(ii)(a) and 5110(f)(2)(D)(ii)(b). View More

Underwriter Default. (a) If any Underwriter or Underwriters shall default in its or their obligation to purchase Firm Shares Units hereunder, and if the securities Firm Units with respect to which such default relates (the "Default Securities") Units") do not (after giving effect to arrangements, if any, made by the Representative pursuant to subsection (b) below) exceed in the aggregate 10% of the number of Firm Shares, Units, each non-defaulting Underwriter, acting severally and not jointly, agrees to purchase Maxim Group LLC July 28, 2014 Page 38 of 43 from the Company that number of Default Securities Units that bears the same proportion of the total number of Default Securities Units then being purchased as the number of Firm Shares Units set forth opposite the name of such Underwriter on Schedule I A hereto bears to the aggregate number of Firm Shares Units set forth opposite the names of the non-defaulting Underwriters, subject, however, to such adjustments to eliminate fractional shares as the Representative in its sole discretion shall make. (b) In the event that the aggregate number of Default Securities Units exceeds 10% of the number of Firm Shares, Units, the Representative may in its their discretion arrange for themselves or for another party or parties (including any non-defaulting Underwriter or Underwriters who so agree) to purchase the Default Securities Units on the terms contained herein. In the event that within 48 hours five calendar days after such a default the Representative does do not arrange for the purchase of the Default Securities Units as provided in this Section 9, this Agreement shall thereupon terminate, without liability on the part of the Company with respect thereto (except in each case as provided in Sections 5, 4, 6, 7, 8, 9 and 11(d)) or the Underwriters, but nothing in this Agreement shall relieve a defaulting Underwriter or Underwriters of its or their liability, if any, to the other Underwriters and the Company for damages occasioned by its or their default hereunder. (c) In the event that any Default Securities Units are to be purchased by the non-defaulting Underwriters, or are to be purchased by another party or parties as aforesaid, the Representative or the Company shall have the right to postpone the Closing Date for a period, not exceeding five (5) Business Days, business days, in order to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus or in any other documents and arrangements, and the Company agrees to file promptly any amendment or supplement to the Registration Statement or the Prospectus which, in the reasonable opinion of Underwriters' Counsel, may thereby be made necessary or advisable. The term "Underwriter" as used in this Agreement shall include any party substituted under this Section 9 with like effect as if it had originally been a party to this Agreement with respect to such Firm Shares. Units. View More

Underwriter Default. (a) If any Underwriter or Underwriters shall default in its or their obligation to purchase Firm Shares Units hereunder, and if the securities Firm Units with respect to which such default relates (the "Default Securities") Units") do not (after giving effect to arrangements, if any, made by the Representative pursuant to subsection (b) below) exceed in the aggregate 10% of the number of Firm Shares, Units, each non-defaulting Underwriter, acting severally and not jointly, agrees to purchase... from the Company that number of Default Securities Units that bears the same proportion of the total number of Default Securities Units then being purchased as the number of Firm Shares Units set forth opposite the name of such Underwriter on Schedule I A hereto bears to the aggregate number of Firm Shares Units set forth opposite the names of the non-defaulting Underwriters, subject, however, to such adjustments to eliminate fractional shares as the Representative in its sole discretion shall make. (b) In the event that the aggregate number of Default Securities Units exceeds 10% of the number of Firm Shares, Units, the Representative may in its their discretion arrange for themselves or for another party or parties (including any non-defaulting Underwriter or Underwriters who so agree) to purchase the Default Securities Units on the terms contained herein. In the event that within 48 hours five calendar days after such a default the Representative does do not arrange for the purchase of the Default Securities Units as provided in this Section 9, this Agreement shall thereupon terminate, without liability on the part of the Company with respect thereto (except in each case as provided in Sections 5, 4, 6, 7, 8, 9 and 11(d)) or the Underwriters, but nothing in this Agreement shall relieve a defaulting Underwriter or Underwriters of its or their liability, if any, to the other Underwriters and the Company for damages occasioned by its or their default hereunder. (c) In the event that any Default Securities Units are to be purchased by the non-defaulting Underwriters, or are to be purchased by another party or parties as aforesaid, the Representative or the Company shall have the right to postpone the Closing Date for a period, not exceeding five (5) Business Days, business days, in order to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus or in any other documents and arrangements, and the Company agrees to file promptly any amendment or supplement to the Registration Statement or the Prospectus which, in the reasonable opinion of Underwriters' Counsel, may thereby be made necessary or advisable. The term "Underwriter" as used in this Agreement shall include any party substituted under this Section 9 with like effect as if it had originally been a party to this Agreement with respect to such Firm Shares. Units. View More