Effectiveness; Default. This Agreement shall become effective upon the execution and delivery hereof by the parties hereto. If this Agreement shall be terminated by the Underwriter because of any failure or refusal on the part of the Company or any Selling Shareholder to comply with the terms or to fulfill any of the conditions of this Agreement, or if for any reason the Company or any Selling Shareholder shall be unable to perform its obligations under this Agreement, the Company or the Selling Shareholder, as applicable, will reimburse the Underwriter for all out-of-pocket expenses (including the fees and disbursements of its counsel) reasonably incurred by the Underwriter in connection with this Agreement or the offering contemplated hereunder.
Effectiveness; Default. This Agreement shall become effective upon the execution and delivery hereof by the parties hereto. If, on the Closing Date, any one or more of the Underwriters shall fail or refuse to purchase Shares that it has or they have agreed to purchase hereunder on such date, and the aggregate number of Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase is not more than one-tenth of the aggregate number of the Shares to be purchased on such date, the other Underwriter shall be obligated to purchase the Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such date; provided that in no event shall the number of Shares that any Underwriter has agreed to purchase pursuant to this Agreement be increased pursuant to this Section 13 by an amount in excess of one-ninth of such number of Shares without the written consent of such Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase Shares and the aggregate number of Shares with respect to which such default occurs is more than one-tenth of the aggregate number of Shares to be purchased on such date, and arrangements satisfactory to you and the Selling Shareholders for the purchase of such Shares are not made within 36 hours after such default, this Agreement shall terminate without liability on the part of any non-defaulting Underwriter, the Company or the Selling Shareholders. In any such case either you or the relevant Selling Shareholders shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement, in the Time of Sale Prospectus, in the Prospectus or in any other documents or arrangements may be effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement. If this Agreement shall be terminated by the Underwriters, or any of them, because of any failure or refusal on the part of any Seller to comply with the terms or to fulfill any of the conditions of this Agreement, or if for any reason any Seller shall be unable to perform its obligations under this Agreement, the Sellers will reimburse the Underwriters or such Underwriters as have so terminated this Agreement with respect to themselves, severally, for all out-of-pocket expenses (including the fees and dis...
Effectiveness; Default. This Agreement shall become effective upon the execution and delivery hereof by the parties hereto.
Effectiveness; Default. If (i) the Registration Statement covering Registrable Securities is not declared effective by the SEC within ninety (90) days following the Issuance Date (or sixty (60) days following the filing of any subsequent Registration Statement, or the fifth day following the date on which Eagle is notified by the SEC that any Registration Statement will not be reviewed or is no longer subject to further review and comments, or March 1, 2007 in the event the Issuance Date does not occur prior to January 1, 2007), (ii) after the Registration Effectiveness Date, sales cannot be made pursuant to such Registration Statement for any reason (including without limitation by reason of a stop order, or Eagle’s failure to update the Registration Statement), other than pursuant to a Permitted Blackout, or (iii) the Registrable Securities specifically are not listed or included for quotation on the American Stock Exchange, the New York Stock Exchange, the Nasdaq National Market, the Nasdaq Capital Market or the OTC Bulletin Board, or trading of the Common Stock is suspended or halted thereon for more than three (3) hours (any such default under (i), (ii) or (iii) constituting an “Effectiveness Default”), then Eagle will pay Tail Wind as liquidated damages and not as a penalty, an amount equal to 2% of the product of the number of Registrable Securities (whether issued or not) as of the date of such Effectiveness Default times the closing price of the Common Stock on the Principal Market on the date of such Effectiveness Default, for each month (or portion thereof) following the Effectiveness Default during which any of the events described in (i), (ii) or (iii) above occurs and is continuing, which amount shall be payable at the end of each such month and upon termination of the Effectiveness Default. Such payments shall be in partial compensation to Tail Wind, and shall not constitute Tail Wind’s exclusive remedy for such events.
Effectiveness; Default. This Agreement shall become effective upon the execution and delivery hereof by the parties hereto. If this Agreement shall be terminated by the Underwriter because of any failure or refusal on the part of the Company or the Selling Warrantholder to comply with the terms or to fulfill any of the conditions of this Agreement or the Warrant, as applicable, or if for any reason the Company or the Selling Warrantholder shall be unable to perform its obligations under this Agreement or the Warrant including the failure of the Company to deliver the Warrant Shares or the Selling Warrantholder to deliver the Warrant to the Underwriter as contemplated herein, the Company or the Selling Warrantholder that has failed or refused to comply with the terms or fulfill any of the conditions of this Agreement or that, for any reason, is unable to perform its or their obligations under this Agreement or the Warrant will reimburse the Underwriter for all out-of-pocket expenses (including the fees and disbursements of its counsel) reasonably incurred by the Underwriter in connection with this Agreement, the Warrant or the transactions and offering contemplated hereunder.
Effectiveness; Default. If the Registration Statement is not declared effective by the Commission or otherwise becomes effective on or prior to 120 days after Closing (the “Effectiveness Deadline Date”) any such failure or breach being referred to as a “Effectiveness Default” and the date on which such event occurs, the “Effectiveness Default Date”, then in addition to any other rights available to the Holders: (a) on such Effectiveness Default Date, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1% of the product of (i) the subscription price, and (ii) the number of Unit Shares held by such Holder as of the Effectiveness Default Date that are Registrable Securities (such product, the “Holder’s Subscription Amount”) (which remedy shall not be exclusive of any other remedies available under this Agreement); and (a) on each 30 day anniversary of each such Effectiveness Default Date thereof (if the applicable default shall not have been cured by such date) until the applicable Effectiveness Default is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1% of the Holder’s Subscription Amount.
Effectiveness; Default. If the Registration Statement is not declared effective by the Commission or otherwise becomes effective on or prior to 120 days after Closing (the “Effectiveness Deadline Date”) any such failure or breach being referred to as a “Effectiveness Default” and the date on which such event occurs, the “Effectiveness Default Date”, then in addition to any other rights available to the Holders: (a) on such Effectiveness Default Date, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1% of the product of (i) the subscription price, and (ii) the number of Unit Shares held by such Holder as of the Effectiveness Default Date that are Registrable Securities (such product, the “Holder’s Subscription Amount”) (which remedy shall not be exclusive of any other remedies available under this Agreement); and (a) on each 30 day anniversary of each such Effectiveness Default Date thereof (if the applicable default shall not have been cured by such date) until the applicable Effectiveness Default is cured, the Company shall pay to each Holder an amount in cash, as partial liquidated damages and not as a penalty, equal to 1% of the Holder’s Subscription Amount.
