Effective Date of This Agreement and Termination Thereof. (a) This Agreement shall become effective at the earlier of (i) 9:30 A.M., New York City local time, on the first full business day following the day on which the Registration Statement becomes effective under the Act or (ii) the time of the initial public offering of any of the Units by the Underwriters after the Registration Statement becomes effective. The time of the initial public offering shall mean the time of the release by Sterne Agee, for publication, of the first newspaper advertisement relating to the Units, or the time at which the Units are first generally offered by the Underwriters to the public by letter, telephone, telegram or telecopy, whichever shall first occur. The Representative or the Company may prevent this Agreement from becoming effective without liability of any party to any other party, except as provided in Section 5(p), Section 6 and Section 8, by giving the notice indicated in Section 11(c) before the time this Agreement becomes effective under this Section 11(a). (b) In addition to the right to terminate this Agreement pursuant to Sections 7 and 9 hereof, the Representative shall have the right to terminate this Agreement at any time prior to the Closing Date or the Option Closing Date, as the case may be, by giving notice to the Company, and, if exercised, the Over-allotment Option, at any time prior to the Option Closing Date, by giving notice to the Company in the event of the following: (i) if any domestic or international event, act, or occurrence has materially and adversely disrupted, or, in the reasonable opinion of the Representative, will in the immediate future materially and adversely disrupt, the securities markets; or (ii) if there shall have been a general suspension of, or a general limitation on prices for, trading in securities on the New York Stock Exchange or the American Stock Exchange or in the over-the-counter market; or (iii) if there shall have been an outbreak or increase in the level of major hostilities or other national or international calamity; or (iv) if a banking moratorium has been declared by a state or federal authority; or (v) if a moratorium in foreign exchange trading by (c) If the Representative elects to prevent this Agreement from becoming effective, as provided in this Section 11, or to terminate this Agreement pursuant to Section 7 of this Agreement or this Section 11, the Representative shall notify the Company promptly by telephone, telex, or telegram, confirmed by letter. If, as so provided, the Company elects to prevent this Agreement from becoming effective or to terminate this Agreement, the Company shall notify he Representative promptly by telephone, telex, or telegram, confirmed by letter. (d) Notwithstanding anything herein to the contrary, if this Agreement shall not become effective by reason of the election of the Company pursuant to Section 11(a) or if this Agreement shall terminate or shall otherwise not be carried out within the time specified herein by reason of any failure on the part of the Company to perform any covenant or agreement of this Agreement or satisfy any condition of this Agreement by it to be performed or satisfied, the sole liability of the Company to the several Underwriters, in addition to the obligations the Company assumed pursuant to the first sentence of Section 6, will be to reimburse the several Underwriters for such out-of-pocket expenses (including the fees and disbursements of their counsel) as shall have been incurred by them in connection with this Agreement or the proposed offer, sale, and delivery of the Firm Units, Option Units and Representative's Warrants, and, upon demand, the Company agrees to pay promptly the full amount thereof to the Representative for the respective accounts of the Underwriters up to a maximum reimbursement of $75,000. Anything in this Agreement to the contrary notwithstanding other than Section 11(e), if this Agreement shall not be carried out within the time specified herein for any reason other than the failure on the part of the Company to perform any covenant or agreement or satisfy any condition of this Agreement by it to be performed or satisfied, the Company shall have no liability to the several Underwriters other than for obligations assumed by the Company pursuant to Section 6. (e) Notwithstanding any election hereunder or any termination of this Agreement, and whether or not this Agreement is otherwise carried out, the provisions of Sections 5(a)(1), 6, 8, 10 and 13 shall not be in any way affected by such election or termination or failure to carry out the terms of this Agreement or any part hereof.
Appears in 1 contract
Effective Date of This Agreement and Termination Thereof. (a) This Agreement shall become effective at the later to occur of either (i) the execution of this Agreement or (ii) the earlier of (ia) 9:30 A.M., New York City Atlanta local time, on the first full business day following the day on which the Registration Statement becomes effective under the Act or (iib) the time of the initial public offering of any of the Units Common Stock by the Underwriters after the Registration Statement becomes effective provided, however, that the provisions of Sections 6, 8, 10 and 11 hereof shall at all times be effective. The time of the initial public offering shall mean the time of the release by Sterne Agee, for publication, of the first newspaper advertisement relating to the UnitsCommon Stock, or the time at which shares of the Units Common Stock are first generally offered by the Underwriters to the public by letter, telephone, telegram or telecopy, whichever shall first occur. The Representative or the Company may prevent this Agreement from becoming effective without liability of any party to any other party, except as provided in Section 5(p5(n), Section 6 and Section 8, by giving the notice indicated in Section 11(c) before the time this Agreement becomes effective under this Section 11(a).
(b) In addition to the right to terminate this Agreement pursuant to Sections 7 and 9 hereof, the Representative shall have the right to terminate this Agreement at any time prior to the Closing Date or the Option Closing Date, as the case may be, by giving notice to the Company, and, if exercised, the Over-allotment Option, at any time prior to the Option Closing Date, by giving notice to the Company in the event of the following: (i) if any domestic or international event, act, or occurrence has materially and adversely disrupted, or, in the reasonable opinion of the Representative, will in the immediate future materially and adversely disrupt, the securities markets; or (ii) if there shall have been a general suspension of, or a general limitation on prices for, trading in securities on the New York Stock Exchange or the American Stock Exchange or in the over-the-counter market; or (iii) if there shall have been an outbreak or increase in the level of major hostilities or other national or international calamity; or (iv) if a banking moratorium has been declared by a state or federal authority; or (v) if a moratorium in foreign exchange trading byby major international banks or persons has been declared; or (vi) if there shall have been a material interruption in the mail service or other means of communication within the United States; or (vii) if the Company shall have sustained a material or substantial loss by fire, flood, accident, hurricane, earthquake, theft, sabotage, or other calamity or malicious act, whether or not such loss shall have been insured, or from any labor dispute or court or government action, order, or decree, which will, in the reasonable opinion of the Representative, make it inadvisable to proceed with the offering, sale, or delivery of the Firm Shares or the Option Shares, as the case may be; or (viii) if any material governmental restrictions shall have been imposed on trading in securities in general, which restrictions are not in effect on the date hereof, or (ix) if there shall be passed by the Congress of the United States or by any state legislature any act or measure, or adopted by any governmental body or authoritative accounting institute or board, or any governmental executive, any orders, rules, or regulations, which the Representative believes likely to have a material adverse effect on the business, financial condition, or financial statements of the Company or the market for the Common Stock; or (x) if there shall have been such material and adverse change in the market for the Company's securities or securities in general or in political, financial, or economic conditions as in the judgment of the Representative makes it inadvisable to proceed with the offering, sale, and delivery of the Firm Shares or the Option Shares, as the case may be, on the terms contemplated by the Prospectus.
(c) If the Representative elects to prevent this Agreement from becoming effective, as provided in this Section 11, or to terminate this Agreement pursuant to Section 7 of this Agreement or this Section 11, the Representative shall notify the Company promptly by telephone, telex, or telegram, confirmed by letter. If, as so provided, the Company elects to prevent this Agreement from becoming effective or to terminate this Agreement, the Company shall notify he the Representative promptly by telephone, telex, or telegram, confirmed by letter.
(d) Notwithstanding anything herein to the contrary, if this Agreement shall not become effective by reason of the election of the Company pursuant to Section 11(a) or if this Agreement shall terminate or shall otherwise not be carried out within the time specified herein by December 31, 1998 by reason of any failure on the part of the Company to perform any covenant or agreement of this Agreement or satisfy any condition of this Agreement by it to be performed or satisfied, the sole liability of the Company to the several Underwriters, in addition to the obligations the Company assumed pursuant to the first sentence of Section 6, will be to reimburse the several Underwriters for such reasonable out-of-pocket expenses (including the reasonable fees and disbursements of their counsel) as shall have been incurred by them in connection with this Agreement or the proposed offer, sale, and delivery of the Firm Units, Shares and Option Units and Representative's WarrantsShares, and, upon demand, the Company agrees to pay promptly the full amount thereof to the Representative for the respective accounts of the Underwriters up to a maximum reimbursement of $75,000. Anything in this Agreement to the contrary notwithstanding other than Section 11(e), if this Agreement shall not be carried out within the time specified herein for any reason other than the failure on the part of the Company to perform any covenant or agreement or satisfy any condition of this Agreement by it to be performed or satisfied, the Company shall have no liability to the several Underwriters other than for obligations assumed by the Company pursuant to Section 6.
(e) Notwithstanding any election hereunder or any termination of this Agreement, and whether or not this Agreement is otherwise carried out, the provisions of Sections 5(a)(15(a), 6, 8, 10 and 13 shall not be in any way affected by such election or termination or failure to carry out the terms of this Agreement or any part hereof.
Appears in 1 contract
Sources: Underwriting Agreement (Banc Corp)
Effective Date of This Agreement and Termination Thereof. (a) This Agreement shall become effective at the earlier of immediately as to Sections 7, 9, 10, 11 and 13 and, as to all other provisions, (i) 9:30 A.M.if at the time of execution and delivery of this Agreement the Registration Statement has not become effective, New York City local at 6:30 a.m., Pacific time, on the first full business day following the day Effective Date, or (ii) if at the time of execution and delivery of this Agreement the Registration Statement has been declared effective, at 6:30 a.m., Pacific time, on which the date of execution of this Agreement; but this Agreement shall nevertheless become effective at such earlier time after the Registration Statement becomes effective under as the Act Representative may determine by notice to the Company or (ii) the time of the initial public offering by release of any of the Units by Shares for sale to the Underwriters after public. For the Registration Statement becomes effective. The time purposes of this Section 11, the initial public offering Shares shall mean the time of be deemed to have been so released upon the release by Sterne Agee, for publication, publication of the first any newspaper advertisement relating to the Units, Shares or upon the time at which the Units are first generally offered release by the Representative of telegrams (i) advising the Underwriters that the shares are released for public offering or (ii) offering the Shares for sale to the public by letter, telephone, telegram or telecopysecurities dealers, whichever shall first occurmay occur first. The Representative or the Company may prevent the provisions of this Agreement (other than those contained in Sections 7, 9, 10, 11 and 13) - 40 - 41 hereof from becoming effective without liability of any party to any other party, except as provided in Section 5(p), Section 6 and Section 8noted below, by giving the notice indicated in subsection (c) of this Section 11(c) 10 before the time the other provisions of this Agreement becomes effective under this Section 11(a)become effective.
(b) In addition to the right to terminate this Agreement pursuant to Sections 7 and 9 hereof, the The Representative shall have the right to terminate this Agreement at any time prior to the Closing Date as provided in Sections 8 and 12 hereof or the Option Closing Date, as the case may be, by giving notice to the Company, and, if exercised, the Over-allotment Option, at any time prior to the Option Closing Date, by giving notice to the Company in the event of the followingfollowing have occurred: (i) if since the respective dates as of which information is given in the Registration Statement and the Prospectus, any domestic material adverse change or any development involving a prospective material adverse change in or affecting the condition, financial or otherwise, of the Company, or the earnings, business affairs, management or business prospects of the Company, whether or not arising in the ordinary course of business; (ii) any outbreak of hostilities or other national or international eventcalamity or crisis or change in economic, actpolitical or financial market conditions if such outbreak, calamity, crisis or occurrence has materially and adversely disrupted, orchange would, in the Representative's reasonable opinion judgment, make it impractical or inadvisable to commence or continue the offering of the Representative, will in the immediate future materially and adversely disrupt, the securities marketsShares; or (iiiii) if there shall have been a general suspension of, or a general limitation on prices for, of trading generally in securities on the New York Stock Exchange or the American Stock over-the-counter market or limitation on prices (other than limitations on hours or numbers of days of trading) for securities or the promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which in the Representative's reasonable opinion materially and adversely affects trading on either such Exchange or in the over-the-counter market; or (iii) if there shall have been an outbreak or increase in the level of major hostilities or other national or international calamity; or (iv) if the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which in the Representative's reasonable opinion materially and adversely affects or will materially and adversely affect the business or operations of the Company; (v) declaration of a banking moratorium has been declared by a either federal or state authorities; (vi) the taking of any action by any federal, state or federal authoritylocal government or agency in respect of its monetary or fiscal affairs which in the Representative's reasonable opinion has a material adverse effect on the securities markets in the United States; or (vvii) if declaration of a moratorium in foreign exchange trading byby major international banks or other institutions or (viii) trading in any securities of the Company shall have been suspended or halted by the NASD or the SEC.
(c) If the Representative elects to prevent this Agreement from becoming effective, as provided in this Section 11, or to terminate this Agreement pursuant to Section 7 of this Agreement or this Section 11, the Representative shall notify the Company promptly by telephone, telex, or telegram, confirmed by letter. If, as so provided, the Company elects Representatives elect to prevent this Agreement from becoming effective or to terminate this Agreement- 41 - 42 Agreement as provided in this Section 11, the Company Representative shall notify he Representative the Company thereof promptly by telephone, telex, telegraph or telegramfacsimile, confirmed by letter.
(d) Notwithstanding anything herein to the contrary, if this Agreement shall not become effective by reason of the election of the Company pursuant to Section 11(a) or if this Agreement shall terminate or shall otherwise not be carried out within the time specified herein by reason of any failure on the part of the Company to perform any covenant or agreement of this Agreement or satisfy any condition of this Agreement by it to be performed or satisfied, the sole liability of the Company to the several Underwriters, in addition to the obligations the Company assumed pursuant to the first sentence of Section 6, will be to reimburse the several Underwriters for such out-of-pocket expenses (including the fees and disbursements of their counsel) as shall have been incurred by them in connection with this Agreement or the proposed offer, sale, and delivery of the Firm Units, Option Units and Representative's Warrants, and, upon demand, the Company agrees to pay promptly the full amount thereof to the Representative for the respective accounts of the Underwriters up to a maximum reimbursement of $75,000. Anything in this Agreement to the contrary notwithstanding other than Section 11(e), if this Agreement shall not be carried out within the time specified herein for any reason other than the failure on the part of the Company to perform any covenant or agreement or satisfy any condition of this Agreement by it to be performed or satisfied, the Company shall have no liability to the several Underwriters other than for obligations assumed by the Company pursuant to Section 6.
(e) Notwithstanding any election hereunder or any termination of this Agreement, and whether or not this Agreement is otherwise carried out, the provisions of Sections 5(a)(1), 6, 8, 10 and 13 shall not be in any way affected by such election or termination or failure to carry out the terms of this Agreement or any part hereof.
Appears in 1 contract
Sources: Underwriting Agreement (Ustel Inc)
Effective Date of This Agreement and Termination Thereof. (a) This Agreement shall become effective at the earlier of immediately as to Sections 7, 9, 10, 11 and 13 and, as to all other provisions, (i) 9:30 A.M.if at the time of execution and delivery of this Agreement the Registration Statement has not become effective, New York City local at 6:30 a.m., Pacific time, on the first full business day following the day Effective Date, or (ii) if at the time of execution and delivery of this Agreement the Registration Statement has been declared effective, at 6:30 a.m., Pacific time, on which the date of execution of this Agreement; but this Agreement shall nevertheless become effective at such earlier time after the Registration Statement becomes effective under as the Act Representative may determine by notice to the Company or (ii) the time of the initial public offering by release of any of the Units by Shares for sale to the Underwriters after public. For the Registration Statement becomes effective. The time purposes of this Section 11, the initial public offering Shares shall mean the time of be deemed to have been so released upon the release by Sterne Agee, for publication, publication of the first any newspaper advertisement relating to the Units, Shares or upon the time at which the Units are first generally offered release by the Representative of telegrams (i) advising the Underwriters that the shares are released for public offering or (ii) offering the Shares for sale to the public by letter, telephone, telegram or telecopysecurities dealers, whichever shall first occurmay occur first. The Representative or the Company may prevent the provisions of this Agreement (other than those contained in Sections 7, 9, 10, 11 and 13) hereof from becoming effective without liability of any party to any other party, except as provided in Section 5(p), Section 6 and Section 8noted below, by giving the notice indicated in subsection (c) of this Section 11(c) 10 before the time the other provisions of this Agreement becomes effective under this Section 11(a)become effective.
(b) In addition to the right to terminate this Agreement pursuant to Sections 7 and 9 hereof, the The Representative shall have the right to terminate this Agreement at any time prior to the Closing Date as provided in Sections 8 and 12 hereof or the Option Closing Date, as the case may be, by giving notice to the Company, and, if exercised, the Over-allotment Option, at any time prior to the Option Closing Date, by giving written notice to the Company in the event if any of the followingfollowing have occurred: (i) if since the respective dates as of which information is given in the Registration Statement and the Prospectus, any domestic material adverse change or international eventany development involving a prospective material adverse change in or affecting the condition, actfinancial or otherwise, of the Company, or occurrence has materially and adversely disruptedthe earnings, orbusiness affairs, management or business prospects of the Company, whether or not arising in the ordinary course of business that would make it, in the reasonable opinion Representative's judgement, impractical to market the Shares or enforce contracts for the sale of the Representative, will in the immediate future materially and adversely disrupt, the securities marketsShares; or (ii) any outbreak of hostilities or other national or international calamity or crisis or change in economic, political or financial market conditions if there shall have been a general such outbreak, calamity, crisis or change would, in the Representative's reasonable judgment, make it impractical or inadvisable to commence or continue the offering of the Shares; (iii) suspension of, or a general limitation on prices for, of trading generally in securities on the New York Stock Exchange or the American Stock over-the-counter market or limitation on prices (other than limitations on hours or numbers of days of trading) for securities or the promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which in the Representative's reasonable opinion materially and adversely affects trading on either such Exchange or in the over-the-counter market; or (iii) if there shall have been an outbreak or increase in the level of major hostilities or other national or international calamity; or (iv) if the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority that would make it, in the Representative's judgement, impractical to market the Shares or enforce contracts for the sale of the Shares; (v) declaration of a banking moratorium has been declared by a either federal or New York or California authorities; (vi) the taking of any action by any federal, state or federal authoritylocal government or agency in respect of its monetary or fiscal affairs which in the Representative's reasonable opinion has a material adverse effect on the securities markets in the United States which would in the Representative's judgment make it impractical to market the Shares or enforce contracts for the sale of the Shares; or (vvii) if declaration of a moratorium in foreign exchange trading byby major international banks or other institutions or (viii) trading in any securities of the Company shall have been suspended or halted by the NASD or the SEC.
(c) If the Representative elects to prevent this Agreement from becoming effective, as provided in this Section 11, or to terminate this Agreement pursuant to Section 7 of this Agreement or this Section 11, the Representative shall notify the Company promptly by telephone, telex, or telegram, confirmed by letter. If, as so provided, the Company elects Representatives elect to prevent this Agreement from becoming effective or to terminate this AgreementAgreement as provided in this Section 11, the Company Representative shall notify he Representative the Company thereof promptly by telephone, telex, telegraph or telegramfacsimile, confirmed by letter.
(d) Notwithstanding anything herein to the contrary, if this Agreement shall not become effective by reason of the election of the Company pursuant to Section 11(a) or if this Agreement shall terminate or shall otherwise not be carried out within the time specified herein by reason of any failure on the part of the Company to perform any covenant or agreement of this Agreement or satisfy any condition of this Agreement by it to be performed or satisfied, the sole liability of the Company to the several Underwriters, in addition to the obligations the Company assumed pursuant to the first sentence of Section 6, will be to reimburse the several Underwriters for such out-of-pocket expenses (including the fees and disbursements of their counsel) as shall have been incurred by them in connection with this Agreement or the proposed offer, sale, and delivery of the Firm Units, Option Units and Representative's Warrants, and, upon demand, the Company agrees to pay promptly the full amount thereof to the Representative for the respective accounts of the Underwriters up to a maximum reimbursement of $75,000. Anything in this Agreement to the contrary notwithstanding other than Section 11(e), if this Agreement shall not be carried out within the time specified herein for any reason other than the failure on the part of the Company to perform any covenant or agreement or satisfy any condition of this Agreement by it to be performed or satisfied, the Company shall have no liability to the several Underwriters other than for obligations assumed by the Company pursuant to Section 6.
(e) Notwithstanding any election hereunder or any termination of this Agreement, and whether or not this Agreement is otherwise carried out, the provisions of Sections 5(a)(1), 6, 8, 10 and 13 shall not be in any way affected by such election or termination or failure to carry out the terms of this Agreement or any part hereof.
Appears in 1 contract
Effective Date of This Agreement and Termination Thereof. (a) This Agreement shall become effective at the later to occur of either (i) the execution of this Agreement or (ii) the earlier of (ia) 9:30 A.M., New York City Tampa local time, on the first full business day following the day on which the Registration Statement becomes effective under the Act or (iib) the time of the initial public offering of any of the Units Common Stock by the Underwriters after the Registration Statement becomes effective provided, however, that the provisions of Sections 6, 8, 10 and 11 hereof shall at all times be effective. The time of the initial public offering shall mean the time of the release by Sterne Agee, for publication, of the first newspaper advertisement relating to the UnitsCommon Stock, or the time at which shares of the Units Common Stock are first generally offered by the Underwriters to the public by letter, telephone, telegram or telecopy, whichever shall first occur. The Representative or the Company may prevent this Agreement from becoming effective without liability of any party to any other party, except as provided in Section 5(p5(n), Section 6 and Section 8, by giving the notice indicated in Section 11(c) before the time this Agreement becomes effective under this Section 11(a).
(b) In addition to the right to terminate this Agreement pursuant to Sections 7 and 9 hereof, the Representative shall have the right to terminate this Agreement at any time prior to the Closing Date or the Option Closing Date, as the case may be, by giving notice to the Company, and, if exercised, the Over-allotment Option, at any time prior to the Option Closing Date, by giving notice to the Company in the event of the following: (i) if any domestic or international event, act, or occurrence has materially and adversely disrupted, or, in the reasonable opinion of the Representative, will in the immediate future materially and adversely disrupt, the securities markets; or (ii) if there shall have been a general suspension of, or a general limitation on prices for, trading in securities on the New York Stock Exchange or the American Stock Exchange or in the over-the-counter market; or (iii) if there shall have been an outbreak or increase in the level of major hostilities or other national or international calamity; or (iv) if a banking moratorium has been declared by a state or federal authority; or (v) if a moratorium in foreign exchange trading byby major international banks or persons has been declared; or (vi) if there shall have been a material interruption in the mail service or other means of communication within the United States; or (vii) if the Company shall have sustained a material or substantial loss by fire, flood, accident, hurricane, earthquake, theft, sabotage, or other calamity or malicious act, whether or not such loss shall have been insured, or from any labor dispute or court or government action, order, or decree, which will, in the reasonable opinion of the Representative, make it inadvisable to proceed with the offering, sale, or delivery of the Firm Shares or the Option Shares, as the case may be; or (viii) if any material governmental restrictions shall have been imposed on trading in securities in general, which restrictions are not in effect on the date hereof, or (ix) if there shall be passed by the Congress of the United States or by any state legislature any act or measure, or adopted by any governmental body or authoritative accounting institute or board, or any governmental executive, any orders, rules, or regulations, which the Representative believes likely to have a material adverse effect on the business, financial condition, or financial statements of the Company or the market for the Common Stock; or (x) if there shall have been such material and adverse change in the market for the Company's securities or securities in general or in political, financial, or economic conditions as in the judgment of the Representative makes it inadvisable to proceed with the offering, sale, and delivery of the Firm Shares or the Option Shares, as the case may be, on the terms contemplated by the Prospectus.
(c) If the Representative elects to prevent this Agreement from becoming effective, as provided in this Section 11, or to terminate this Agreement pursuant to Section 7 of this Agreement or this Section 11, the Representative shall notify the Company promptly by telephone, telex, or telegram, confirmed by letter. If, as so provided, the Company elects to prevent this Agreement from becoming effective or to terminate this Agreement, the Company shall notify he the Representative promptly by telephone, telex, or telegram, confirmed by letter.
(d) Notwithstanding anything herein to the contrary, if this Agreement shall not become effective by reason of the election of the Company pursuant to Section 11(a) or if this Agreement shall terminate or shall otherwise not be carried out within the time specified herein by December 31, 2003 by reason of any failure on the part of the Company to perform any covenant or agreement of this Agreement or satisfy any condition of this Agreement by it to be performed or satisfied, the sole liability of the Company to the several Underwriters, in addition to the obligations the Company assumed pursuant to the first sentence of Section 6, will be to reimburse the several Underwriters Sterne, Agee for such reasonable out-of-pocket expenses (including the reasonable fees and disbursements of their its counsel) as shall have been incurred by them it in connection with this Agreement or the proposed offer, sale, and delivery of the Firm Units, Shares and Option Units and Representative's WarrantsShares, and, upon demand, the Company agrees to pay promptly the full amount thereof to the Representative for the respective accounts of the Underwriters Sterne, Agee up to a maximum reimbursement of $75,000. Anything in this Agreement to the contrary notwithstanding other than Section 11(e), if this Agreement shall not be carried out within the time specified herein for any reason other than the failure on the part of the Company to perform any covenant or agreement or satisfy any condition of this Agreement by it to be performed or satisfied, the Company shall have no liability to the several Underwriters other than for obligations assumed by the Company pursuant to Section 6.
(e) Notwithstanding any election hereunder or any termination of this Agreement, and whether or not this Agreement is otherwise carried out, the provisions of Sections 5(a)(15(a), 6, 8, 10 and 13 shall not be in any way affected by such election or termination or failure to carry out the terms of this Agreement or any part hereof.
Appears in 1 contract
Sources: Underwriting Agreement (Coast Financial Holdings Inc)
Effective Date of This Agreement and Termination Thereof. (a) a. This Agreement shall become effective at be executed within 24 hours of the earlier Effective Date of (i) 9:30 A.M., New York City local time, on the first full business day following the day on which the Registration Statement becomes and shall become effective under on the Act Effective Date or (ii) at the time of the initial public offering of any of the Units by the Underwriters after the Registration Statement becomes effectiveShares, whichever is earlier. The time of the initial public offering shall mean the time time, after the Registration Statement becomes effective, of the release by Sterne Agee, the Representative for publication, publication of the first newspaper advertisement which is subsequently published relating to the Units, Shares or the time at which time, after the Units Registration Statement becomes effective, when the Shares are first generally offered released by the Underwriters to the public Representative for offering by letter, telephone, telegram dealers by letter or telecopytelegram, whichever shall first occur. The Representative or the Company may prevent this Agreement from becoming effective without liability of any party to any other party, except as provided noted below in this Section 5(p), Section 6 and Section 810, by giving the notice indicated in Section 11(c10(c) before the time this Agreement becomes effective under this Section 11(a)effective.
(b) In addition to the right to terminate this Agreement pursuant to Sections 7 and 9 hereof, the b. The Representative shall have the right to terminate this Agreement at any time prior to the Closing Date or the Option any Additional Closing Date, as the case may be, by giving notice to the Company, and, if exercised, the Over-allotment Option, at any time prior to the Option Closing Date, by giving notice to the Company in the event of the following: (i) if there has been, since the time of execution of this Agreement or since the respective dates as of which information is given in the Prospectus (exclusive of any domestic supplement thereto), any material adverse change in the condition, financial or international event, actotherwise, or occurrence has materially and adversely disrupted, or, in the reasonable opinion earnings, business affairs or business prospects of the RepresentativeCompany, will whether or not arising in the immediate future materially and adversely disruptordinary course of business, the securities markets; or (ii) if there shall have been has occurred any material adverse change in the financial markets in the United States or the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving a general suspension ofprospective change in national or international political, financial or economic conditions, in each case the effect of which is such as to make it, in the judgment of the Representative, impracticable or inadvisable to market the Shares or to enforce contracts for the sale of the Shares, or a general limitation on prices for(iii) if trading generally of the Nasdaq SmallCap Market, trading in securities on the New York Stock Exchange or the American Stock Exchange Nasdaq National Market has been suspended or in the over-the-counter market; materially limited, or (iii) if there shall minimum or maximum prices for trading have been an outbreak fixed, or increase in maximum ranges for prices have been required, by any of said exchange or by such system or by order of the level Commission, the National Association of major hostilities Securities Dealers, Inc. or any other national or international calamity; governmental authority, or (iv) or a material disruption has occurred in commercial banking or securities settlement or clearance services in the Untied States, or (v) if a banking moratorium has been declared by a state either Federal or federal authority; New York authorities, or (vvi) if there shall have been a moratorium material interruption in foreign exchange trading by
(c) If the Representative elects to prevent this Agreement from becoming effective, as provided in this Section 11mail service or other means of communication within the United States, or to terminate this Agreement pursuant to Section 7 of this Agreement or this Section 11, the Representative shall notify the Company promptly by telephone, telex, or telegram, confirmed by letter. If, as so provided, the Company elects to prevent this Agreement from becoming effective or to terminate this Agreement, (vii) if the Company shall notify he Representative promptly have sustained a material or substantial loss by telephonefire, telexflood, accident, hurricane, earthquake, theft, sabotage, or telegramother calamity or malicious act which, confirmed whether or not such loss shall have been insured, will, in the Representative's opinion, make it inadvisable to proceed with the offering, sale, or delivery of the Shares, or (viii) if there shall have been such material and adverse change in the market for securities in general so as to make it inadvisable to proceed with the offering, sale, and delivery of the Shares, as the case may be, on the terms contemplated by letterthe Prospectus due to the impaired investment quality of the Shares, or (ix) if the Dow Jones Industrial Average or the Nasdaq Composite Index shall have fallen by 15% or more from its closing price on the day immediately preceding the date that the Registration Statement is declared effective by the Commission.
(d) Notwithstanding anything herein c. Anything in this Agreement to the contrarycontrary notwithstanding other than Section 10(e), if this Agreement shall not become effective by reason of the an election of the Company pursuant to this Section 11(a) 10 or if this Agreement shall terminate or shall otherwise not be carried out prior to June 30, 2002 because (i) of any reason solely within the time specified herein by reason of any failure on the part control of the Company or its stockholders and not due to perform the breach of any representation, warranty or covenant or agreement of this Agreement or satisfy any condition of this Agreement by it to be performed or satisfied, the sole liability bad faith of the Representative, (ii) the Company unilaterally withdraws the proposed Public Offering from the Representative in favor of another underwriter, (iii) the Company does not permit the Registration Statement to become effective, (iv) of any material discrepancy in any representation by the Company and/or its officers, directors, stockholders, agents, advisers or representatives, made in writing, including but not limited to the several UnderwritersRegistration Statement, in addition to the obligations Representative, (v) the Company assumed pursuant to the first sentence is, directly and/or indirectly, negotiating with other persons or entities of Section 6, will be to reimburse the several Underwriters for such out-of-pocket expenses (including the fees and disbursements of their counsel) as shall have been incurred by them in connection with this Agreement or the proposed offer, sale, and delivery of the Firm Units, Option Units and Representative's Warrants, and, upon demand, the Company agrees to pay promptly the full amount thereof to the Representative for the respective accounts of the Underwriters up whatsoever nature relating to a maximum reimbursement possible Public Offering of $75,000. Anything in this Agreement to the contrary notwithstanding other than Section 11(e)its securities, if this Agreement shall not be carried out within the time specified herein for or (vi) of any reason other than the failure on the part of the Company to perform any covenant or agreement or satisfy any condition of this Agreement by it to be performed or satisfied, then, in any of such events, the Company shall have be obligated to reimburse the Representative for its out-of-pocket expenses on an accountable basis. Should the Representative be required to account for "out-of-pocket" expenses, any expense incurred by the Representative shall be deemed to be reasonable and unobjectionable upon a reasonable showing by the Representative that such expenses were incurred, directly or indirectly, in connection with the proposed transaction and/or relationship of the parties hereto, as described herein. In no liability event will the Representative be entitled to reimbursement of accountable expenses exceeding $80,000, inclusive of the $50,000 advanced against the non-accountable expense allowance. The Representative will return to the several Underwriters other than for obligations assumed by Company any portion of the Company pursuant to Section 6$50,000 payment previously received that is not used in the payment of accountable expenses if the Public Offering is not completed.
(e) d. Notwithstanding any election hereunder or any termination of this Agreement, and whether or not this Agreement is otherwise carried out, the provisions of Sections 5(a)(15(a), 6, 8, 9, and 10 and 13 shall not be in any way affected by such election or termination or failure to carry out the terms of this Agreement or any part hereof.
Appears in 1 contract
Effective Date of This Agreement and Termination Thereof. (a) This Agreement shall become effective at the earlier of immediately as to Sections 7, 9, 10, 11 and 13 and, as to all other provisions, (i) 9:30 A.M.if at the time of execution and delivery of this Agreement the Registration Statement has not become effective, New York City local at 6:30 a.m., Pacific time, on the first full business day following the day Effective Date, or (ii) if at the time of execution and delivery of this Agreement the Registration Statement has been declared effective, at 6:30 a.m., Pacific time, on which the date of execution of this Agreement; but this Agreement shall nevertheless become effective at such earlier time after the Registration Statement becomes effective under as the Act Representatives may determine by notice to the Company or (ii) the time of the initial public offering by release of any of the Units by Shares for sale to the Underwriters after public. For the Registration Statement becomes effective. The time purposes of this Section 11, the initial public offering Shares shall mean the time of be deemed to have been so released upon the release by Sterne Agee, for publication, publication of the first any newspaper advertisement relating to the Units, Shares or upon the time at which the Units are first generally offered release by the Representatives of telegrams (i) advising the Underwriters that the Shares are released for public offering or (ii) offering the Shares for sale to the public by letter, telephone, telegram or telecopysecurities dealers, whichever shall first occurmay occur first. The Representative or the Company Representatives may prevent the provisions of this Agreement (other than those contained in Sections 7, 9, 10, 11 and 13) hereof from becoming effective without liability of any party to any other party, except as provided in Section 5(p), Section 6 and Section 8noted below, by giving the notice indicated in subsection (c) of this Section 11(c) 10 before the time the other provisions of this Agreement becomes effective under this Section 11(a)become effective.
(b) In addition to the right to terminate this Agreement pursuant to Sections 7 and 9 hereof, the Representative The Representatives shall have the right to terminate this Agreement at any time prior to the Closing Date as provided in Sections 8 and 12 hereof or the Option Closing Date, as the case may be, by giving notice to the Company, and, if exercised, the Over-allotment Option, at any time prior to the Option Closing Date, by giving notice to the Company in the event of the followingfollowing have occurred: (i) if since the respective dates as of which information is given in the Registration Statement and the Prospectus, any domestic material adverse change or any development involving a prospective material adverse change in or affecting the condition, financial or otherwise, of the Company, or the earnings, business affairs, management or business prospects of the Company, whether or not arising in the ordinary course of business; (ii) any outbreak of hostilities or other national or international eventcalamity or crisis or change in economic, actpolitical or financial market conditions if such outbreak, calamity, crisis or occurrence has materially and adversely disrupted, orchange would, in the Representatives' reasonable opinion judgment, make it impractical or inadvisable to commence or continue the offering of the Representative, will in the immediate future materially and adversely disrupt, the securities marketsShares; or (iiiii) if there shall have been a general suspension of, or a general limitation on prices for, of trading generally in securities on the New York Stock Exchange Exchange, Inc. ("NYSE") or on the Nasdaq National Market System or minimum or maximum prices shall have been established thereon (other than limitations on hours or numbers of days of trading) for securities or the American Stock Exchange promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which in the over-the-counter marketRepresentatives' reasonable opinion materially and adversely affects trading on either such NYSE or on the Nasdaq National Market System; (iv) the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which in the Representatives' reasonable opinion materially and adversely affects or will materially and adversely affect the business or operations of the Company; (v) declaration of a banking moratorium by either federal or California, New York or Florida authorities; (vi) the taking of any action by any federal, state or local government or agency in respect of its monetary or fiscal affairs which in the Representatives' reasonable opinion has a material adverse effect on the securities markets in the United States; (vii) trading in any securities of the Company shall have been suspended or halted by the NASD or the SEC; or (iiiviii) if there any securities of the Company shall have been an outbreak downgraded or increase in the level of major hostilities or other national or international calamity; or (iv) if a banking moratorium has been declared placed on any "watch list" for possible downgrading by a state or federal authority; or (v) if a moratorium in foreign exchange trading byany nationally recognized statistical rating organization.
(c) If the Representative elects to prevent this Agreement from becoming effective, as provided in this Section 11, or to terminate this Agreement pursuant to Section 7 of this Agreement or this Section 11, the Representative shall notify the Company promptly by telephone, telex, or telegram, confirmed by letter. If, as so provided, the Company elects Representatives elect to prevent this Agreement from becoming effective or to terminate this AgreementAgreement as provided in this Section 11, the Company Representatives shall notify he Representative the Company thereof promptly by telephone, telex, telegraph or telegramfacsimile, confirmed by letter.
(d) Notwithstanding anything herein to the contrary, if this Agreement shall not become effective by reason of the election of the Company pursuant to Section 11(a) or if this Agreement shall terminate or shall otherwise not be carried out within the time specified herein by reason of any failure on the part of the Company to perform any covenant or agreement of this Agreement or satisfy any condition of this Agreement by it to be performed or satisfied, the sole liability of the Company to the several Underwriters, in addition to the obligations the Company assumed pursuant to the first sentence of Section 6, will be to reimburse the several Underwriters for such out-of-pocket expenses (including the fees and disbursements of their counsel) as shall have been incurred by them in connection with this Agreement or the proposed offer, sale, and delivery of the Firm Units, Option Units and Representative's Warrants, and, upon demand, the Company agrees to pay promptly the full amount thereof to the Representative for the respective accounts of the Underwriters up to a maximum reimbursement of $75,000. Anything in this Agreement to the contrary notwithstanding other than Section 11(e), if this Agreement shall not be carried out within the time specified herein for any reason other than the failure on the part of the Company to perform any covenant or agreement or satisfy any condition of this Agreement by it to be performed or satisfied, the Company shall have no liability to the several Underwriters other than for obligations assumed by the Company pursuant to Section 6.
(e) Notwithstanding any election hereunder or any termination of this Agreement, and whether or not this Agreement is otherwise carried out, the provisions of Sections 5(a)(1), 6, 8, 10 and 13 shall not be in any way affected by such election or termination or failure to carry out the terms of this Agreement or any part hereof.
Appears in 1 contract
Sources: Underwriting Agreement (Transeastern Properties Inc)
Effective Date of This Agreement and Termination Thereof. (a) This Agreement shall become effective at the earlier of (i) 9:30 A.M., New York City local time, on the first full business day following the day on which the Registration Statement becomes effective under the Act or (ii) the time of the initial public offering of any of the Units by the Underwriters after the Registration Statement becomes effective. The time of the initial public offering shall mean the time of the release by Sterne Agee, for publication, of the first newspaper advertisement relating to the Units, or the time at which the Units are first generally offered by the Underwriters to the public by letter, telephone, telegram or telecopy, whichever shall first occur. The Representative or the Company may prevent this Agreement from becoming effective without liability of any party to any other party, except as provided in Section 5(p), Section 6 and Section 8, by giving the notice indicated in Section 11(c) before the time this Agreement becomes effective under this Section 11(a).
(b) In addition to the right to terminate this Agreement pursuant to Sections 7 and 9 hereof, the Representative shall have the right to terminate this Agreement at any time prior to the Closing Date or the Option Closing Date, as the case may be, by giving notice to the Company, and, if exercised, the Over-allotment Option, at any time prior to the Option Closing Date, by giving notice to the Company in the event of the following: (i) if any domestic or international event, act, or occurrence has materially and adversely disrupted, or, in the reasonable opinion of the Representative, will in the immediate future materially and adversely disrupt, the securities markets; or (ii) if there shall have been a general suspension of, or a general limitation on prices for, trading in securities on the New York Stock Exchange or the American Stock Exchange or in the over-the-counter market; or (iii) if there shall have been an outbreak or increase in the level of major hostilities or other national or international calamity; or (iv) if a banking moratorium has been declared by a state or federal authority; or (v) if a moratorium in foreign exchange trading byby major international banks or persons has been declared; or (vi) if there shall have been a material interruption in the mail service or other means of communication within the United States; or (vii) if the Company shall have sustained a material or substantial loss by fire, flood, accident, hurricane, earthquake, theft, sabotage, or other calamity or malicious act, whether or not such loss shall have been insured, or from any labor dispute or court or government action, order, or decree, which will, in the reasonable opinion of the Representative, make it inadvisable to proceed with the offering, sale, or delivery of the Firm Units or the Option Units, as the case may be; or (viii) if any material governmental restrictions shall have been imposed on trading in securities in general, which restrictions are not in effect on the date hereof, or (ix) if there shall be passed by the Congress of the United States or by any state legislature any act or measure, or adopted by any governmental body or authoritative accounting institute or board, or any governmental executive, any orders, rules, or regulations, which the Representative believes likely to have a material adverse effect on the business, financial condition, or financial statements of the Company or the market for the Common Stock; or (x) if there shall have been such material and adverse change in the market for the Company's securities or securities in general or in political, financial, or economic conditions as in the reasonable judgment of the Representative makes it inadvisable to proceed with the offering, sale, and delivery of the Firm Units or the Option Units, as the case may be, on the terms contemplated by the Prospectus.
(c) If the Representative elects to prevent this Agreement from becoming effective, as provided in this Section 11, or to terminate this Agreement pursuant to Section 7 of this Agreement or this Section 11, the Representative shall notify the Company promptly by telephone, telex, or telegram, confirmed by letter. If, as so provided, the Company elects to prevent this Agreement from becoming effective or to terminate this Agreement, the Company shall notify he Representative promptly by telephone, telex, or telegram, confirmed by letter.
(d) Notwithstanding anything herein to the contrary, if this Agreement shall not become effective by reason of the election of the Company pursuant to Section 11(a) or if this Agreement shall terminate or shall otherwise not be carried out within the time specified herein by reason of any failure on the part of the Company to perform any covenant or agreement of this Agreement or satisfy any condition of this Agreement by it to be performed or satisfied, the sole liability of the Company to the several Underwriters, in addition to the obligations the Company assumed pursuant to the first sentence of Section 6, will be to reimburse the several Underwriters for such out-of-pocket expenses (including the fees and disbursements of their counsel) as shall have been incurred by them in connection with this Agreement or the proposed offer, sale, and delivery of the Firm Units, Option Units and Representative's Warrants, and, upon demand, the Company agrees to pay promptly the full amount thereof to the Representative for the respective accounts of the Underwriters up to a maximum reimbursement of $75,000. Anything in this Agreement to the contrary notwithstanding other than Section 11(e), if this Agreement shall not be carried out within the time specified herein for any reason other than the failure on the part of the Company to perform any covenant or agreement or satisfy any condition of this Agreement by 39 it to be performed or satisfied, the Company shall have no liability to the several Underwriters other than for obligations assumed by the Company pursuant to Section 6.
(e) Notwithstanding any election hereunder or any termination of this Agreement, and whether or not this Agreement is otherwise carried out, the provisions of Sections 5(a)(1), 6, 8, 10 and 13 shall not be in any way affected by such election or termination or failure to carry out the terms of this Agreement or any part hereof.
Appears in 1 contract
Effective Date of This Agreement and Termination Thereof. (a) This Agreement shall become effective at the earlier of immediately as to Sections 7, 9, 10, 11 and 14 and, as to all other provisions, (i) 9:30 A.M.if at the time of execution and delivery of this Agreement the Registration Statement has not become effective, New York City local at 6:30 a.m., Pacific time, on the first full business day following the day Effective Date, or (ii) if at the time of execution and delivery of this Agreement the Registration Statement has been declared effective, at 6:30 a.m., Pacific time, on which the date of execution of this Agreement; but this Agreement shall nevertheless become effective at such earlier time after the Registration Statement becomes effective under as the Act Representative may determine by notice to the Company or (ii) the time of the initial public offering by release of any of the Units by Shares for sale to the Underwriters after public. For the Registration Statement becomes effective. The time purposes of this Section 10, the initial public offering Shares shall mean the time of be deemed to have been so released upon the release by Sterne Agee, for publication, publication of the first any newspaper advertisement relating to the Units, Shares or upon the time at which the Units are first generally offered release by the Representative of telegrams (i) advising the Underwriters that the shares are released for public offering or (ii) offering the Shares for sale to the public by letter, telephone, telegram or telecopysecurities dealers, whichever shall first occurmay occur first. The Representative or the Company may prevent the provisions of this Agreement (other than those contained in Sections 7, 9, 10, 11 and 14) hereof from becoming effective without liability of any party to any other party, except as provided in Section 5(p), Section 6 and Section 8noted below, by giving the notice indicated in subsection (c) of this Section 11(c) 10 before the time the other provisions of this Agreement becomes effective under this Section 11(a)become effective.
(b) In addition to the right to terminate this Agreement pursuant to Sections 7 and 9 hereof, the The Representative shall have the right to terminate this Agreement at any time prior to the Closing Date as provided in Sections 8 and 12 hereof or the Option Closing Date, as the case may be, by giving notice to the Company, and, if exercised, the Over-allotment Option, at any time prior to the Option Closing Date, by giving notice to the Company in the event of the followingfollowing have occurred: (i) if since the respective dates as of which information is given in the Registration Statement and the Prospectus, any domestic material adverse change or any development involving a prospective material adverse change in or affecting the condition, financial or otherwise, of the Company, or the earnings, business affairs, management or business prospects of the Company, whether or not arising in the ordinary course of business; (ii) any outbreak of hostilities or other national or international eventcalamity or crisis or change in economic, actpolitical or financial market conditions if such outbreak, calamity, crisis or occurrence has materially and adversely disrupted, orchange would, in the Representative's reasonable opinion judgment, make it impractical or inadvisable to commence or continue the offering of the Representative, will in the immediate future materially and adversely disrupt, the securities marketsShares; or (iiiii) if there shall have been a general suspension of, or a general limitation on prices for, of trading generally in securities on the New York Stock Exchange or the American Stock over-the-counter market or limitation on prices (other than limitations on hours or numbers of days of trading) for securities or the promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which in the Representative's reasonable opinion materially and adversely affects trading on either such Exchange or in the over-the-counter market; or (iii) if there shall have been an outbreak or increase in the level of major hostilities or other national or international calamity; or (iv) if the enactment, publication, decree or other promulgation of any federal or state statute, regulation, rule or order of any court or other governmental authority which in the Representative's reasonable opinion materially and adversely affects or will materially and adversely affect the business or operations of the Company; (v) declaration of a banking moratorium has been declared by a either federal or state authorities; (vi) the taking of any action by any federal, state or federal authoritylocal government or agency in respect of its monetary or fiscal affairs which in the Representatives' reasonable opinion has a material adverse effect on the securities markets in the United States; or (vvii) if declaration of a moratorium in foreign exchange trading byby major international banks or other institutions or (viii) trading in any securities of the Company shall have been suspended or halted by the NASD or the SEC.
(c) If the Representative elects to prevent this Agreement from becoming effective, as provided in this Section 11, or to terminate this Agreement pursuant to Section 7 of this Agreement or this Section 11, the Representative shall notify the Company promptly by telephone, telex, or telegram, confirmed by letter. If, as so provided, the Company elects Representatives elect to prevent this Agreement from becoming effective or to terminate this AgreementAgreement as provided in this Section 11, the Company Representative shall notify he Representative the Company thereof promptly by telephone, telex, telegraph or telegramfacsimile, confirmed by letter.
(d) Notwithstanding anything herein to the contrary, if this Agreement shall not become effective by reason of the election of the Company pursuant to Section 11(a) or if this Agreement shall terminate or shall otherwise not be carried out within the time specified herein by reason of any failure on the part of the Company to perform any covenant or agreement of this Agreement or satisfy any condition of this Agreement by it to be performed or satisfied, the sole liability of the Company to the several Underwriters, in addition to the obligations the Company assumed pursuant to the first sentence of Section 6, will be to reimburse the several Underwriters for such out-of-pocket expenses (including the fees and disbursements of their counsel) as shall have been incurred by them in connection with this Agreement or the proposed offer, sale, and delivery of the Firm Units, Option Units and Representative's Warrants, and, upon demand, the Company agrees to pay promptly the full amount thereof to the Representative for the respective accounts of the Underwriters up to a maximum reimbursement of $75,000. Anything in this Agreement to the contrary notwithstanding other than Section 11(e), if this Agreement shall not be carried out within the time specified herein for any reason other than the failure on the part of the Company to perform any covenant or agreement or satisfy any condition of this Agreement by it to be performed or satisfied, the Company shall have no liability to the several Underwriters other than for obligations assumed by the Company pursuant to Section 6.
(e) Notwithstanding any election hereunder or any termination of this Agreement, and whether or not this Agreement is otherwise carried out, the provisions of Sections 5(a)(1), 6, 8, 10 and 13 shall not be in any way affected by such election or termination or failure to carry out the terms of this Agreement or any part hereof.
Appears in 1 contract
Effective Date of This Agreement and Termination Thereof. (a) This Agreement shall become effective at the later to occur of either (i) the execution of this Agreement or (ii) the earlier of (ia) 9:30 A.M., New York City Atlanta local time, on the first full business day following the day on which the Registration Statement becomes effective under the Act or (iib) the time of the initial public offering of any of the Units Common Stock by the Underwriters after the Registration Statement becomes effective provided, however, that the provisions of Sections 6, 8, 10 and 11 hereof shall at all times be effective. The time of the initial public offering shall mean the time of the release by Sterne Agee, for publication, of the first newspaper advertisement relating to the UnitsCommon Stock, or the time at which the Units Common Stock are first generally offered by the Underwriters to the public by letter, telephone, telegram or telecopy, whichever shall first occur. The Representative or the Company may prevent this Agreement from becoming effective without liability of any party to any other party, except as provided in Section 5(p5(n), Section 6 and Section 8, by giving the notice indicated in Section 11(c) before the time this Agreement becomes effective under this Section 11(a).
(b) In addition to the right to terminate this Agreement pursuant to Sections 7 and 9 hereof, the Representative shall have the right to terminate this Agreement at any time prior to the Closing Date or the Option Closing Date, as the case may be, by giving notice to the Company, and, if exercised, the Over-allotment Option, at any time prior to the Option Closing Date, by giving notice to the Company in the event of the following: (i) if any domestic or international event, act, or occurrence has materially and adversely disrupted, or, in the reasonable opinion of the Representative, will in the immediate future materially and adversely disrupt, the securities markets; or (ii) if there shall have been a general suspension of, or a general limitation on prices for, trading in securities on the New York Stock Exchange or the American Stock Exchange or in the over-the-counter market; or (iii) if there shall have been an outbreak or increase in the level of major hostilities or other national or international calamity; or (iv) if a banking moratorium has been declared by a state or federal authority; or (v) if a moratorium in foreign exchange trading byby major international banks or persons has been declared; or (vi) if there shall have been a material interruption in the mail service or other means of communication within the United States; or (vii) if the Company shall have sustained a material or substantial loss by fire, flood, accident, hurricane, earthquake, theft, sabotage, or other calamity or malicious act, whether or not such loss shall have been insured, or from any labor dispute or court or government action, order, or decree, which will, in the reasonable opinion of the Representative, make it inadvisable to proceed with the offering, sale, or delivery of the Firm Shares or the Option Shares, as the case may be; or (viii) if any material governmental restrictions shall have been imposed on trading in securities in general, which restrictions are not in effect on the date hereof, or (ix) if there shall be passed by the Congress of the United States or by any state legislature any act or measure, or adopted by any governmental body or authoritative accounting institute or board, or any governmental executive, any orders, rules, or regulations, which the Representative believes likely to have a material adverse effect on the business, financial condition, or financial statements of the Company or the market for the Common Stock; or (x) if there shall have been such material and adverse change in the market for the Company's securities or securities in general or in political, financial, or economic conditions as in the judgment of the Representative makes it inadvisable to proceed with the offering, sale, and delivery of the Firm Shares or the Option Shares, as the case may be, on the terms contemplated by the Prospectus.
(c) If the Representative elects to prevent this Agreement from becoming effective, as provided in this Section 11, or to terminate this Agreement pursuant to Section 7 of this Agreement or this Section 11, the Representative shall notify the Company promptly by telephone, telex, or telegram, confirmed by letter. If, as so provided, the Company elects to prevent this Agreement from becoming effective or to terminate this Agreement, the Company shall notify he the Representative promptly by telephone, telex, or telegram, confirmed by letter.
(d) Notwithstanding anything herein to the contrary, if this Agreement shall not become effective by reason of the election of the Company pursuant to Section 11(a) or if this Agreement shall terminate or shall otherwise not be carried out within the time specified herein by July 1, 1998 by reason of any failure on the part of the Company to perform any covenant or agreement of this Agreement or satisfy any condition of this Agreement by it to be performed or satisfied, the sole liability of the Company to the several Underwriters, in addition to the obligations the Company assumed pursuant to the first sentence of Section 6, will be to reimburse the several Underwriters for such out-of-pocket expenses (including the fees and disbursements of their counsel) as shall have been incurred by them in connection with this Agreement or the proposed offer, sale, and delivery of the Firm Units, Shares and Option Units and Representative's WarrantsShares, and, upon demand, the Company agrees to pay promptly the full amount thereof to the Representative for the respective accounts of the Underwriters up to a maximum reimbursement of $75,00060,000 (of which no more than $40,000 may be attributable to fees of their counsel). Anything in this Agreement to the contrary notwithstanding other than Section 11(e), if this Agreement shall not be carried out within the time specified herein for any reason other than the failure on the part of the Company to perform any covenant or agreement or satisfy any condition of this Agreement by it to be performed or satisfied, the Company shall have no liability to the several Underwriters other than for obligations assumed by the Company pursuant to Section 6.
(e) Notwithstanding any election hereunder or any termination of this Agreement, and whether or not this Agreement is otherwise carried out, the provisions of Sections 5(a)(15(a), 6, 8, 10 and 13 shall not be in any way affected by such election or termination or failure to carry out the terms of this Agreement or any part hereof.
Appears in 1 contract