Common use of Default by the Underwriter Clause in Contracts

Default by the Underwriter. If the Underwriter shall fail to purchase and pay for any of the Securities agreed to be purchased by the Underwriter hereunder and such failure to purchase shall constitute a default in the performance of its obligations under this Agreement, and the aggregate amount of the Securities that the Underwriter agreed but failed to purchase shall exceed 10% of the aggregate amount of the Securities set forth in Schedule I(A) hereto, the Company and the Selling Stockholders shall be entitled to a period of 36 hours within which to procure another party or parties to purchase no less than the amount of such unpurchased Securities that exceeds 10% of the amount thereof upon such terms herein set forth. If, however, the Company and the Selling Stockholders shall not have completed such arrangements within 72 hours after such default and the amount of unpurchased Securities exceeds 10% of the amount of such Securities to be purchased on such date, then this Agreement will terminate without liability to the Company and the Selling Stockholders. In the event of a default by the Underwriter as set forth in this Section 11, the Closing Date shall be postponed for such period, not exceeding five Business Days, to effect any changes that in the opinion of counsel for the Company, counsel for the Selling Stockholders or counsel for the Underwriter are necessary in the Registration Statement, Prospectus or in any other documents or arrangements may be effected. Nothing contained in this Agreement shall relieve the defaulting Underwriter of its liability, if any, to the Company and the Selling Stockholders for damages occasioned by its default hereunder.

Default by the Underwriter. If the Underwriter shall fail at the Closing Time to purchase and pay the Securities which it is obligated to purchase under this Agreement (the “Defaulted Securities”), the Underwriter shall have the right, within 24 hours thereafter, to make arrangements for one or more non-defaulting Underwriter, or any other underwriters, to purchase all, but not less than all, of the Defaulted Securities in such amounts as may be agreed to be purchased by upon and upon the Underwriter hereunder and such failure to purchase shall constitute a default in the performance of its obligations under this Agreement, and the aggregate amount of the Securities that the Underwriter agreed but failed to purchase shall exceed 10% of the aggregate amount of the Securities set forth in Schedule I(A) hereto, the Company and the Selling Stockholders shall be entitled to a period of 36 hours within which to procure another party or parties to purchase no less than the amount of such unpurchased Securities that exceeds 10% of the amount thereof upon such terms herein set forth. If; if, however, the Company and the Selling Stockholders Underwriter shall not have completed such arrangements within 72 hours after such default and 24-hour period, then, if the amount number of unpurchased Defaulted Securities exceeds does not exceed 10% of the amount number of such Securities to be purchased on such date, then this Agreement will terminate without liability the non-defaulting Underwriter shall be obligated to purchase the full amount thereof in the proportions that its respective underwriting obligations hereunder bear to the Company and underwriting obligations of the Selling Stockholdersnon-defaulting Underwriter. No action taken pursuant to this Section shall relieve the defaulting Underwriter from liability in respect of its default. In the event of any such default which does not result in a default by termination of this Agreement, either the (i) Underwriter as set forth in this Section 11, or (ii) the Company shall have the right to postpone Closing Date shall be postponed Time for such period, a period not exceeding five Business Days, seven days in order to effect any required changes that in the opinion of counsel for the Company, counsel for the Selling Stockholders or counsel for the Underwriter are necessary in the Registration Statement, the General Disclosure Package or the Prospectus or in any other documents or arrangements may be effectedarrangements. Nothing contained in As used herein, the term “Underwriter” includes any person substituted for an Underwriter under this Agreement shall relieve the defaulting Underwriter of its liability, if any, to the Company and the Selling Stockholders for damages occasioned by its default hereunderSection 10.

Default by the Underwriter. (a) If the any Underwriter or Underwriters shall fail default in its or their obligations to purchase the Firm Shares or the Option Shares, if the Over-allotment Option is exercised hereunder, and pay for any if the number of the Securities agreed Firm Shares or Option Shares with respect to be purchased by which such default relates (the Underwriter hereunder and such failure to purchase shall constitute a default “Default Shares”) does not exceed in the performance of its obligations under this Agreement, and the aggregate amount of the Securities that the Underwriter agreed but failed to purchase shall exceed 10% of the number of Firm Shares or Option Shares that all Underwriters have agreed to purchase hereunder, then the Representative may make arrangements satisfactory to the Company for the purchase of such Default Shares by other persons, including the Underwriters, but if no such arrangements are made by the applicable Closing Date, then the non-defaulting Underwriters shall purchase such Default Shares in proportion to their respective commitments hereunder. (b) In the event that the aggregate amount number of Default Shares for which an Underwriter defaults in its obligation to purchase hereunder exceeds 10% of the Securities set forth in Schedule I(A) heretonumber of Firm Shares or Option Shares, the Company and Representative may in its discretion arrange for the Selling Stockholders shall be entitled to a period of 36 hours within which to procure non-defaulting Underwriters or for another party or parties to purchase no less than the amount of such unpurchased Securities that exceeds 10% of Default Shares on the amount thereof upon such terms herein set forth. If, however, the Company and the Selling Stockholders shall not have completed such arrangements within 72 hours after such default and the amount of unpurchased Securities exceeds 10% of the amount of such Securities to be purchased on such date, then this Agreement will terminate without liability to the Company and the Selling Stockholderscontained herein. In the event of that within five calendar days after such a default by the Underwriter Representative does not arrange for the purchase of the Default Shares as set forth provided in this Section 116, this Agreement shall thereupon terminate, without liability on the Closing Date shall be postponed for such periodpart of the Company with respect thereto (except in each case as provided in Sections 3(m), not exceeding five Business Days5, to effect any changes that in the opinion of counsel for the Company8 and 9), counsel for the Selling Stockholders or counsel for the Underwriter are necessary in the Registration Statement, Prospectus or in any other documents or arrangements may be effected. Nothing contained but nothing in this Agreement shall relieve the a defaulting Underwriter of its liability, if any, to the Company and the Selling Stockholders for damages occasioned by its default hereunder); provided, however, that if such default occurs with respect to the Option Shares, this Agreement will not terminate as to the Firm Shares. (c) In the event that any Default Shares are to be purchased by another party or parties as aforesaid, the Underwriters or the Company shall have the right to postpone the Closing Date or settlement date, as the case may be for a period, not exceeding five business days, in order to effect whatever changes may thereby be made necessary in the Registration Statement, the Pricing Disclosure Package 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, Pricing Disclosure Package or the Prospectus which, in the opinion of Underwriter’s counsel, may thereby be made necessary or advisable. The term “Underwriter” as used in this Agreement shall include any party substituted under this Section 6 with like effect as if it had originally been a party to this Agreement with respect to such Securities.