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There is no fact relating to the Company that the Company has not disclosed to Acquiring Entity in writing that materially and adversely affects nor, insofar as Company can now foresee, will materially and adversely affect, the condition (financial or otherwise), properties, assets, liabilities, business operations, results of operations or prospects of Company. No representation or warranty by Company herein and no information disclosed in the schedules or exhibits hereto by Company contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements contained herein or therein not misleading. | 31Disclosures
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Borrower shall have paid or shall have made provision to pay on the SPLNG Funding Date in accordance with the Funds Flow Memorandum delivered pursuant to Section 3.3(j) ( Funds Flow Memorandum ), to each Agent, each Arranger and each Joint Bookrunner the fees payable on or before the SPLNG Funding Date referred to in Section 2.10(c) and (d) ( Fees ) and all expenses payable pursuant to Section 10.2 ( Expenses ) which have accrued to the SPLNG Funding Date. | 42Fees
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This Agreement, and all questions relating to its validity, interpretation, performance and enforcement, as well as the legal relations hereby created between the parties hereto, shall be governed by and construed under, and interpreted and enforced in accordance with, the laws of the State of California, notwithstanding any California or other conflict of law provision to the contrary. This Agreement is intended to comply with Section 409A of the Internal Revenue Code of 1986 and the regulations promulgated thereunder. Any action or proceeding by either of the parties to enforce this Agreement shall be brought only in a state or federal court located in the State of California, Sonoma county. The parties hereby irrevocably submit to the exclusive jurisdiction of such courts and waive the defense of inconvenient forum to the maintenance of any such action or proceeding in such venue. | 47Governing Laws
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The Board may amend or terminate the Plan at any time; provided, however, that the Board shall not amend the Plan without approval of the shareholders of UGI if such approval is required in order to comply with the Code or applicable laws, or to comply with applicable stock exchange requirements. No amendment or termination of this Plan shall, without the consent of the Participant, materially impair any rights or obligations under any Grant previously made to the Participant under the Plan, unless such right has been reserved in the Plan or the Grant Letter, or except as provided in Section 21(d) below. | 2Amendments
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This Agreement has been duly and validly authorized, executed and delivered by ADGE and constitutes a binding obligation of ADGE. | 10Authorizations
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This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument. Any counterpart or other signature hereon delivered by facsimile shall be deemed for all purposes as constituting good and valid execution and delivery of this Agreement by such party. | 26Counterparts
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All references to sections (§) are to sections (§) of this Plan unless otherwise indicated. This Plan shall be construed under the laws of the State of Delaware. Each term set forth in § 2 shall, unless otherwise stated, have the meaning set forth opposite such term for purposes of this Plan and, for purposes of such definitions, the singular shall include the plural and the plural shall include the singular. All references to applicable laws shall be deemed to include any amendments to such laws and any successor provisions to such laws. Finally, if there is any conflict between the terms of this Plan and the terms of any Option Certificate, Stock Appreciation Right Certificate, Stock Grant Certificate or Cash Bonus Incentive Certificate, the terms of this Plan shall control. | 23Construction
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On the Closing Date, upon the terms and subject to the conditions set forth herein, substantially concurrent with the execution and delivery of this Agreement by the parties hereto, the Company agrees to sell, and Purchaser agrees to purchase $200,000.00 in principal amount of the Note, and corresponding Warrants as determined pursuant to Section 2.2(a) (such purchase and sale being the “ Closing ”). Purchaser shall deliver to the Company $200,000.00 by wire transfer, and the Company shall deliver to Purchaser its respective Note and Warrants, as determined pursuant to Section 2.2(a), and the Company and Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the Closing shall occur at such location as the parties shall mutually agree. Notwithstanding anything herein to the contrary, the Closing Date shall occur on or before April 25, 2016. | 18Closings
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No Credit Party shall, and no Credit Party shall suffer or permit any of its Subsidiaries to, use any portion of the Loan proceeds, directly or indirectly, to purchase or carry Margin Stock or repay or otherwise refinance Indebtedness of any Credit Party or others incurred to purchase or carry Margin Stock, or otherwise in any manner which is in contravention of any Requirement of Law or in violation of this Agreement. | 92Use Of Proceeds
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The Seller hereby acknowledges that the Purchaser has, concurrently with the execution hereof, executed and delivered the Pooling and Servicing Agreement and that, in connection therewith, it has assigned its rights hereunder to the Trustee for the benefit of the Certificateholders. The Seller hereby acknowledges its obligations pursuant to Sections 2.01, 2.02 and 2.03 of the Pooling and Servicing Agreement. This Agreement shall bind and inure to the benefit of and be enforceable by the Seller, the Purchaser and their permitted successors and assigns. Any Person into which the Seller may be merged or consolidated, or any Person resulting from any merger, conversion or consolidation to which the Seller may become a party, or any Person succeeding to all or substantially all of the business of the Seller, shall be the successor to the Seller hereunder without any further act. The warranties and representations and the agreements made by the Seller herein shall survive delivery of the Mortgage Loans to the Trustee until the termination of the Pooling and Servicing Agreement, but shall not be further assigned by the Trustee to any Person. | 7Assignments
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The Plan was adopted effective as of January 1, 2013 (the “Effective Date”). The Plan hereby is amended and restated effective as of January 1, 2015 (the “Restatement Effective Date”). | 33Effective Dates
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None of Murphy USA, the Company or any other Subsidiary will enter into any Sale/Leaseback Transaction unless (a) the sale or transfer of the property thereunder is permitted under Section 6.05, (b) any Indebtedness and Liens arising in connection therewith are permitted under Sections 6.01 and 6.02 and (c) either (i) such Sale/Leaseback Transaction (A) relates to a fixed or capital asset, (B) is made for cash consideration in an amount not less than the fair value of such asset and (C) is consummated within 90 days after Murphy USA, the Company or any other Subsidiary acquires or completes the construction of such asset or (ii) such Sale/Leaseback Transaction (A) relates to a fixed or capital asset that is not of the type that is described in the definition of the term “ABL Priority Collateral”, (B) is made for cash consideration in an amount not less than the fair value of such asset and (C) after giving pro forma effect thereto (including the incurrence of the Attributable Indebtedness in respect thereof) in accordance with Section 1.04(b), (1) no Default shall have occurred and be continuing, (2) Availability shall exceed the greater of (x) 25% of the lesser of the Aggregate Revolving Commitments and the Borrowing Base (as adjusted in accordance with Section 6.05) and (y) $100,000,000, (3) unless Availability shall exceed the greater of (x) 40% of the lesser of the Aggregate Revolving Commitment and the Borrowing Base (as adjusted in accordance with Section 6.05) and (y) $100,000,000, Murphy USA and the Company shall be in compliance with the covenants set forth in Sections 6.11 (determined as if a Covenant Period were then applicable), (4) Murphy USA and the Company shall be in compliance with, at any time when a Covenant Period shall be in effect, Section 6.11 and, at any time when a Term Loan shall be outstanding, Section 6.12 and (5) the Secured Leverage Ratio shall not exceed 2.50 to 1.00, in the case of clauses (3), (4) and (5), as of the end of or for the period of four consecutive fiscal quarters of Murphy USA then most recently ended for which financial statements have been delivered pursuant to Section 5.01(a) or 5.01(b) (or, prior to the delivery of any such financial statements, ending with the last fiscal quarter included in the financial statements referred to in Section 3.04(a)). | 77Sales
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Except as otherwise provided for in this Agreement, the provisions herein may be modified only upon the mutual agreement of the Parties, however, no such modification shall be effective until reduced to writing and executed by both Parties. | 2Amendments
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(a) As of the Closing Date, the Borrower, each Guarantor and each other Subsidiary have good and marketable title to, or valid leasehold interests in, all of their respective properties and assets, real and personal, including all of the properties and assets and leasehold interests reflected in the financial statements referred to in Section 4.04 (other than any properties or assets disposed of in the ordinary course of business or as otherwise expressly permitted by this Agreement). None of the properties and assets owned by the Borrower, any Guarantor or any other Restricted Subsidiary and none of their leasehold interests is subject to any Lien, except such as may be permitted pursuant to Section 6.01 (provided that any Liens required by Section 6.01 to be junior to the Liens securing the Facility are, in fact, junior to such Liens securing the Facility). | 57Liens
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For purposes of this Section, the term “Lender” includes any Issuing Lender. | 28Defined Terms
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This Agreement and the legal relations hereby created between the parties hereto shall be governed by and construed under and in accordance with the internal laws of the State of Colorado, without regard to conflicts of laws principles thereof. Each Participant shall submit to the venue and personal jurisdiction of the Colorado state and federal courts concerning any dispute for which judicial redress is permitted pursuant to this Agreement; however the Company is not limited in seeking relief in those courts. | 47Governing Laws
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In the performance of this Agreement, each party will comply with all applicable laws, regulations, rules, orders and other requirements of governmental authorities having jurisdiction. | 19Compliance With Laws
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EACH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT ADMINISTRATIVE AGENT, ANY LENDER OR THE L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST BORROWERS OR THEIR PROPERTIES IN THE COURTS OF ANY JURISDICTION. | 82Submission To Jurisdiction
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Capitalized terms used in this Agreement but not defined herein shall have the meanings given to them in the Purchase Agreement. | 29Definitions
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The Borrower will, and will cause each Subsidiary to, (a) except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect, (i) do or cause to be done all things necessary to preserve, renew and keep in full force and effect its legal existence and the rights, qualifications, licenses, permits, franchises, governmental authorizations, intellectual property rights, licenses and permits material to the conduct of its business, and (ii) maintain all requisite authority to conduct its business in each jurisdiction in which its business is conducted; provided that the foregoing shall not prohibit any merger, consolidation, liquidation or dissolution permitted under Section 6.03 and (b) carry on and conduct its business (i) except where the failure to do so could not reasonably be expected to result in a Material Adverse Effect, in substantially the same manner and (ii) in substantially the same fields of enterprise as it is presently conducted. | 40Existence
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This Agreement embodies the complete agreement and understanding among the parties to this Agreement with respect to the subject matter of this Agreement and supersedes and preempts any prior understandings, agreements or representations by or among the parties, written or oral, which may have related to the subject matter of this Agreement in any way. | 38Entire Agreements
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Each of the La Jolla Parties has all requisite power, authority and capacity to enter into this Release, to perform such party's obligations hereunder and to consummate the transactions contemplated hereby. | 9Authority
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All of the properties and operations of the Borrower and each Subsidiary of a character usually insured by companies of established reputation engaged in the same or a similar business similarly situated are adequately insured, by financially sound and reputable insurers, against loss or damage of the kinds and in amounts customarily insured against by such Persons, and the Borrower and the Subsidiaries carry, with such insurers in customary amounts, such other insurance, including larceny, embezzlement or other criminal misappropriation insurance and business interruption insurance, as is usually carried by companies of established reputation engaged in the same or a similar business similarly situated. | 51Insurances
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Except as set forth in the SEC Documents, the Company (after giving effect to the transactions contemplated by this Agreement) is solvent ( i.e. , its assets have a fair market value in excess of the amount required to pay its probable liabilities on its existing debts as they become absolute and matured) and currently the Company has no information that would lead it to reasonably conclude that the Company would not, after giving effect to the transaction contemplated by this Agreement, have the ability to, nor does it intend to take any action that would impair its ability to, pay its debts from time to time incurred in connection therewith as such debts mature. The Company did not receive a qualified opinion from its auditors with respect to its most recent fiscal year end and, after giving effect to the transactions contemplated by this Agreement, does not anticipate or know of any basis upon which its auditors might issue a qualified opinion in respect of its current fiscal year. | 80Solvency
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The REIT Guarantor and its Subsidiaries and each other Person for whose taxes the REIT Guarantor or any of its Subsidiaries could become liable have timely filed or caused to be filed all Federal income tax returns and all other material tax returns that are required to be filed by them, and have paid all taxes shown to be due and payable on such returns or on any assessments made against it or its property and all other taxes, fees or other charges imposed on it or any of its property by any Governmental Authority, except where the same are currently being contested in good faith by appropriate proceedings and for which the REIT Guarantor or such Subsidiary, as the case may be, has set aside on its books adequate reserves in accordance with GAAP, or except where the failure to do so would not reasonably be expected to have a Material Adverse Effect. | 87Taxes
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Each of the Borrowers and their respective Subsidiaries has timely filed all material reports, documents and other materials required to be filed by it under all applicable Requirements of Law with any Governmental Authority, has retained all material records and documents required to be retained by it under all applicable Requirements of Law, and is otherwise in compliance with all applicable Requirements of Law in respect of the conduct of its business and the ownership and operation of its properties, except for such Requirements of Law the failure to comply with which, individually or in the aggregate, would not be reasonably likely to have a Material Adverse Effect. | 19Compliance With Laws
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Borrower will pay to Lender a fee of Five Thousand Dollars ($5,000.00) for this Ninth Waiver.. | 42Fees
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Neither party shall have the right to assign its rights or obligations under this Agreement without the prior written consent of the other party; provided, however, that either party may, without such consent, assign this Agreement and its rights and obligations hereunder (a) to any Affiliate, or (b) in connection with the transfer or sale of all or substantially all of its business to which this Agreement relates, or in the event of its merger, consolidation, change of control or similar transaction. Any permitted assignee shall assume all obligations of its assignor under this Agreement. Any purported assignment, transfer or delegation in violation of this Section 6.6 shall be void. | 7Assignments
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The terms of this Program may be amended by the Committee or the Board (or their respective delegates), provided that the Chief Human Resources Officer or the Vice President, Corporate Compensation, of the Company may amend the Program to comply with applicable law, to make administrative changes or to carry out directives of the Board or the Committee. | 2Amendments
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Executive shall be paid a base salary (“Base Salary”) at the annual rate of two hundred thousand dollars ($200,000.00), payable in bi-weekly installments consistent with Company’s payroll practices. Any accrued salary must be paid out at year-end, each year. | 11Base Salary
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As soon as practicable following the sending or receipt thereof by the Company or any of its Restricted Subsidiaries, a copy of any and all written communications with respect to (a) any Environmental Claims that, individually or in the aggregate, have a reasonable possibility of giving rise to a Material Adverse Effect, (b) any material Release required to be reported to any Government Instrumentality, and (c) any request for information from any Governmental Instrumentality that suggests such agency is investigating whether Company or any of its Restricted Subsidiaries may be potentially responsible for costs arising out of any Hazardous Materials Activity. | 74Releases
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This Amendment, together with the Contribution Agreement, constitutes the entire agreement among the Contributors and CFI with respect to the subject matter hereof and supersedes any agreement or understanding entered into as of a date prior to the date hereof among or between them with respect to such subject matter. | 38Entire Agreements
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The parties hereto agree that irreparable damage for which monetary damages, even if available, would not be an adequate remedy, would occur if the parties hereto do not perform their obligations under the provisions of this letter agreement in accordance with its specified terms or otherwise breach such provisions. The parties acknowledge and agree that (i) the parties shall be entitled to an injunction or injunctions, specific performance, or other equitable relief, to prevent breaches of this letter agreement and to enforce specifically the terms and provisions hereof (in the courts described in Section 2(b)) without proof of damages or otherwise, this being in addition to any other remedy to which they are entitled under this letter agreement, at law or in equity, and (ii) the right of specific enforcement is an integral part of this letter agreement the Transactions and without that right, neither the Company nor Parent would have entered into this letter agreement or the Transaction Agreements. | 81Specific Performance
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Headings contained in this Agreement are solely for the convenience of the parties hereto and shall not be deemed to or be used to define, construe or limit any of the provisions hereof. | 48Headings
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This Reinstatement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. | 13Binding Effects
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The parties to each assignment shall (A) execute and deliver to the Administrative Agent an Assignment and Acceptance via an electronic settlement platform, or manually if previously confirmed, together with a processing and recordation fee of $3,500 payable by the assignee unless waived in the sole discretion of the Administrative Agent, (B) deliver an Administrative Questionnaire unless the assignee is already a Lender and (C) deliver the documents required under Section 2.19(e) and (f) . | 7Assignments
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No failure on the part of any party to exercise or delay in exercising any right hereunder will be deemed a waiver thereof, nor will any single or partial exercise preclude any further or other exercise of such or any other right. | 97Waivers
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The headings in this Agreement are intended for convenient references only and shall not in any way limit, amplify or be used in interpreting the terms of this Agreement. The masculine, feminine or neutral gender in the singular or plural shall be deemed to include the others wherever the context of this Agreement so requires. This Agreement shall not be construed against any party hereto as the drafters of this Agreement. | 23Construction
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The applicable Lead Party will book all sales of the Licensed Products in the US Territory and the ROW Territory, respectively, and will have the sole responsibility for the processing of orders, invoicing, terms of sale, and distribution of the Licensed Products throughout the US Territory and the ROW Territory, respectively, associated therewith. | 77Sales
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Except as specifically modified or clarified by this Second Amendment, all of the remaining terms and conditions set forth in the Agreement and the First Amendment shall remain unchanged and in full force and effect, all of which are restated, confirmed, ratified, incorporated in and made a part hereof by this reference. This Second Amendment may be executed in one or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same original. By this reference, the foregoing recitals and the attached Appendix D are incorporated in and made a part of this Second Amendment. | 59Miscellaneous
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This Amendment No. 11 shall be governed by, and construed in accordance with, the law of the State of New York. | 47Governing Laws
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On the Termination Date Lender shall, at Borrower’s expense, release or terminate any filings or other agreements that perfect Lender’s security interest, upon Lender’s receipt of the following, in form and content satisfactory to Lender: (i) a release of all claims against Lender by Borrower relating to Lender’s performance and obligations under the Loan Documents, and (ii) an agreement by Borrower, and any new lender to Borrower to indemnify Lender for any payments received by Lender that are applied to the Obligations as a final payoff that may subsequently be returned or otherwise not paid for any reason. | 88Terminations
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The Borrower will, and will cause each of its Subsidiaries to, do or cause to be done all things necessary to preserve, renew and keep in full force and effect (a) its legal existence and good standing in its jurisdiction of organization and (b) the rights, qualifications, licenses, permits, privileges, franchises, governmental authorizations and intellectual property rights material to the conduct of business of the Borrower and its Subsidiaries, and maintain all requisite authority to conduct its business in each other jurisdiction in which its business is conducted, except, in the case of this clause (b), as could not reasonably be expected to have a Material Adverse Effect; provided that the foregoing shall not prohibit any merger, consolidation, liquidation or dissolution permitted under Section 6.03. | 40Existence
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This Agreement may be amended by the Committee; provided, however, that no amendment may decrease rights inherent in this Award prior to such amendment without the express written consent of the parties hereto. Notwithstanding the provisions of this Section 21, this Agreement may be amended by the Committee to the extent necessary to comply with applicable laws and regulations and to conform the provisions of this Agreement to any changes thereto. | 2Amendments
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For the immediately preceding five year period, neither the Credit Parties nor any of their respective Subsidiaries nor, to the knowledge of any Responsible Officer of any Credit Party, any director, officer, agent, employee or other Person acting in such capacity on behalf of any Credit Party or any of their respective Subsidiaries, has taken any action, directly or indirectly, that would result in a violation by such Persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “ FCPA ”), or any other applicable anti-corruption law, in each case, in any material respect. No part of the proceeds of the Loans shall be used, directly or indirectly, for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the FCPA. Each Credit Party has conducted its businesses in compliance with applicable anti-corruption laws, in all material respects, and has instituted and maintained policies and procedures designed to promote and achieve compliance with such laws. | 3Anti-Corruption Laws
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Prior to any disbursement under the Loan, Borrower shall have delivered to Lender, true and exact copies of the current financial statements of the Borrower, the Bank and all other Subsidiaries, for the quarter ending March 31, 2016 and audit report and opinion of the Borrower’s independent accounting firm, with respect thereto (it being understood that Lender is relying upon such audit report and opinion in entering into this Loan Agreement), the unaudited financial statements of Borrower as of April 30, 2016 and the 2015 F.R. Y-6 Annual Report and F.R. Y-9 Parent Company only (and Consolidated, if applicable) financial statement(s) filed by Borrower with the Federal Reserve. | 43Financial Statements
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All notices, requests, demands, directions and other communications provided for herein shall be in writing and shall be delivered or mailed in the manner specified in the Securities Purchase Agreement addressed to a party at its address set forth in or determined pursuant to the Securities Purchase Agreement, as the case may be. | 65Notices
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This Agreement shall become effective when it shall have been executed by the Borrowers and Holdings and the Administrative Agent shall have been notified by each Lender, Swingline Lender and Issuing Bank that each such Lender, Swingline Lender and Issuing Bank has executed it and thereafter shall be binding upon and inure to the benefit of the Borrowers, each Agent and each Lender and their respective successors and assigns, except that the Borrowers shall not have the right to assign its rights hereunder or any interest herein without the prior written consent of the Lenders except as permitted by Section 7.04 . | 13Binding Effects
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This Agreement constitutes the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes all prior negotiations, agreements, commitments, writings, courses of dealing and understandings with respect to the subject matter hereof. | 38Entire Agreements
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Both before and after giving effect to (a) the disbursement of the proceeds of the Loans, (b) the consummation of the Transactions and (c) the payment and accrual of all transaction costs in connection with the foregoing and any contribution and indemnification between such Person, the Parent Companies, the Borrower and the Restricted Subsidiaries, on a Consolidated basis, are Solvent. | 80Solvency
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The Company will pay all reasonable Registration Expenses, as determined in good faith, in connection with a shelf Registration, a Piggyback Registration or an Underwritten Offering, whether or not any sale is made pursuant to such shelf Registration, Piggyback Registration or Underwritten Offering. Each Selling Holder shall pay its pro rata share of all Selling Expenses in connection with any sale of its Registrable Securities hereunder. In addition, except as otherwise provided in Section 2.08 , the Company shall not be responsible for professional fees (including legal fees) incurred by Holders in connection with the exercise of such Holders’ rights hereunder. | 41Expenses
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This Agreement shall be governed and construed in accordance with the substantive laws of the State of Delaware without reference to principles of conflicts of law that would result in the application of the laws of another jurisdiction. | 47Governing Laws
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Except as otherwise provided in Section 5(b) , in the event of a Change in Control, all then-outstanding Options (whether vested or unvested) shall be canceled in exchange for a payment having a value equal to the excess, if any, of ( i ) the product of the Change in Control Price multiplied by the aggregate number of shares covered by all such Options immediately prior to the Change in Control over ( ii ) the aggregate Option Price for all such shares , to be paid as soon as reasonably practicable, but in no event later than 30 days following the Change in Control. | 95Vesting
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Advisor and the Company agree that the Company will treat Advisor as an independent contractor for purposes of all tax laws (local, state and federal) and file forms consistent with that status. Advisor agrees, as an independent contractor, that Advisor is not entitled to unemployment benefits in the event this Agreement terminates, or workers’ compensation benefits in the event that Advisor is injured in any manner while performing obligations under this Agreement. Advisor will be solely responsible to pay any and all local, state, and/or federal income, social security and unemployment taxes for Advisor and Advisor’s employees. The Company will not withhold any taxes or prepare W-2 Forms for Advisor, but will provide Advisor with a Form 1099, if required by law. Advisor is solely responsible for, and will timely file all tax returns and payments required to be filed with, or made to, any federal, state or local tax authority with respect to the performance of services and receipt of fees under this Agreement. | 87Taxes
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If any dispute arises out of or in connection with this Agreement, except as expressly contemplated by another provision of this Agreement, the parties irrevocably (and the parties shall cause each other member of their respective Group to irrevocably) (i) consent and submit to the co-exclusive jurisdiction of federal and state courts located in the State of Wisconsin and in the State of Florida, (ii) waive any objection to that choice of forum in Wisconsin or in Florida based on venue or to the effect that the forum is not convenient, and (iii) WAIVE TO THE FULLEST EXTENT PERMITTED BY LAW ANY RIGHT TO TRIAL OR ADJUDICATION BY JURY. | 56Jurisdictions
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Upon request by either party from time to time during the Term, each party hereto agrees to execute and deliver all such other and additional instruments, notices and other documents and do all such other acts and things as may be necessary to carry out the purposes of this Lease and to more fully assure the parties’ rights and interests provided for hereunder. Lessor and Lessee each agree to cooperate with the other on all matters relating to required permits and regulatory compliance by either Lessee or Lessor in respect of the Premises so as to ensure continued full operation of the Premises by Lessee pursuant to the terms of this Lease. | 45Further Assurances
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This letter shall be governed by and construed in accordance with the laws of Delaware without regard to the principles of choice or conflicts of law thereof. | 47Governing Laws
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The Parent has disclosed to the Lenders all agreements, instruments and corporate or other restrictions to which it or any of its Subsidiaries is subject, and all other matters known to it, that, individually or in the aggregate, when taken together with the Parent’s filings with the SEC, could reasonably be expected to result in a Material Adverse Effect. None of the written reports, financial statements, certificates or other written information (other than projections or forward-involving information and information of a general economic or industry specific nature) furnished by or on behalf of the Parent or any Subsidiary to the Administrative Agent or any Lender in connection with the negotiation of this Agreement or delivered hereunder (as modified or supplemented by other information so furnished) contains, when furnished and taken as a whole, and taken as a whole with the Parent’s filings with the SEC, any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not materially misleading; provided that, with respect to projected financial information or results, the Parent represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time (it being understood that such projected financial information are subject to significant uncertainties and contingencies and that no assurances can be given that any particular projected financial information will be realized and that variances between actual results and projected financial results can be material). | 31Disclosures
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All understandings and agreements heretofore had between Assignor and Assignee with respect to the Premises are merged in this Assignment, which alone fully and completely expresses the agreement of the parties. Assignee acknowledges that it has inspected the Premises and that it accepts the same in its "as is" condition subject to use, ordinary wear and tear and natural deterioration and Assignor satisfying its obligations under Section 5 hereof. Assignee further acknowledges that, except as expressly provided in this Assignment, neither Assignor nor any agent or representative of Assignor has made, and Assignor is not liable for or bound in any manner by, any express or implied warranties, guaranties, promises, statements, inducements, representations or information pertaining to the Premises. | 38Entire Agreements
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At the closing of the Transfer of a Membership Interest pursuant to Sections 3.6(b) or 3.6(c) , the Transferee shall deliver to the Transferring Member the full consideration required by this Agreement. Any transfer or similar taxes involved in such sale shall be paid by the Transferring Member, and the Transferring Member shall provide the Transferee with such evidence of the Transferring Member’s authority to Transfer hereunder and such tax lien waivers and similar instruments as the Transferee may reasonably request. | 18Closings
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The Persons listed in Section 3.01(p) ( Subsidiaries and Other Equity Investments ) of the Company Disclosure Letter are all of the Subsidiaries of the Company. Each such Subsidiary has the ownership, domicile and head office identified therein. There is no Lien or other third party right over the share capital or other equity interest of any Subsidiary and there is no agreement to create any Lien or any such right. Except as set forth in Section 3.01(p) ( Subsidiaries and Other Equity Investments ) of the Company Disclosure Letter, there are no agreements or undertakings to which the Company or any of its Subsidiaries is a party, or by which any of them is bound, obligating any of them to issue, deliver, sell, repurchase or redeem or cause to be issued, delivered, sold, repurchased or redeemed any equity interest of any Subsidiary or obligating it to grant or enter into any such option, warrant, call, right, commitment or agreement. Other than its Subsidiaries listed in Section 3.01(p) ( Subsidiaries and Other Equity Investments ) of the Company Disclosure Letter the Company does not own or control, directly or indirectly, any share capital or other equity interest in any other Person and has not agreed or committed to acquire any such interest. Substantially all of the Company Operations are conducted by the Company or the Key Subsidiaries. | 83Subsidiaries
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THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. Sections 10.09 and 10.10 of the Credit Agreement are incorporated by reference herein mutatis mutandis . The provisions of this Agreement shall be binding upon and inure to the benefit of the Loan Parties, Administrative Agent, the Collateral Agent, and the Lenders and their respective successors and permitted assigns. | 59Miscellaneous
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Unless otherwise defined herein, terms defined in the Agreement and used herein shall have the meanings given to them in the Purchase Agreement. | 28Defined Terms
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Upon the occurrence of an Event of Default that is not timely cured within an applicable cure period hereunder, the interest on this Debenture shall immediately accrue at an interest rate equal to twenty-two percent (22%) per annum or the maximum interest rate allowable by law, and, in addition to all other rights or remedies the Holder may have, at law or in equity, the Holder may, in its sole discretion, accelerate full repayment of all principal amounts outstanding hereunder, together with accrued interest thereon, together with all attorneys' fees, paralegals' fees and costs and expenses incurred by the Holder in collecting or enforcing payment hereof (whether such fees, costs or expenses are incurred in negotiations, all trial and appellate levels, administrative proceedings, bankruptcy proceedings or otherwise), and together with all other sums due by the Company hereunder and under the Transaction Documents, all without any relief whatsoever from any valuation or appraisement laws, and payment thereof may be enforced and recovered in whole or in part at any time by one or more of the remedies provided to the Holder at law, in equity, or under this Debenture or any of the other Transaction Documents. In connection with the Holder's rights hereunder upon an Event of Default, the Holder need not provide, and the Company hereby waives, any presentment, demand, protest or other notice of any kind, and the Holder may immediately enforce any and all of its rights and remedies hereunder and all other remedies available to it in equity or under applicable law. | 75Remedies
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Holdings and each of its Subsidiaries have filed all Federal, state, local and other tax returns and reports required to be filed, and have paid all Federal, state, local and other Taxes, assessments, fees and other material governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except those which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP. There is no proposed material Tax assessment or other claim against, and no material Tax audit with respect to, Holdings or any Subsidiary. | 87Taxes
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The representations and warranties of Buyer contained in Article IV shall be true and correct in all respects. | 98Warranties
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The Offeror has taken all actions necessary to authorize it to enter into and perform its obligations under this Agreement and to consummate the transactions contemplated hereby. This Agreement is the valid and binding obligation of the Offeror, enforceable in accordance with its terms, except for the effect of bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting the rights of creditors generally and limitations imposed by federal or state law or equitable principles upon the specific enforceability of any of the remedies, covenants or other provisions thereof, and upon the availability of injunctive relief or other equitable remedies. | 10Authorizations
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The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns, except that no Loan Party may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (a) to a Qualified Institution in accordance with the provisions of Section 14.6.2 , (b) by way of participation in accordance with the provisions of Section 14.6.4 or (c) by way of pledge or assignment of a security interest subject to the restrictions of Section 14.6.6 (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and permitted assigns, Participants to the extent provided in Section 14.6.4 and, to the extent expressly contemplated hereby, the Related Parties of Agents, L/C Issuer and Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement. Notwithstanding the foregoing, any Borrower may assign its rights under this Agreement to a Short Term Affiliate Borrower that assumes the assigning Borrower’s obligations hereunder. | 84Successors
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The Company, by written action of SVP-HR, reserves the right to amend this Plan, in whole or in part, or to discontinue or terminate the Plan, at any time in its sole discretion. Notwithstanding the foregoing, any amendment, discontinuance, or termination with respect to Senior Officers must be made by the HR and Compensation Committee, provided that, the SVP-HR may make any amendment that does not materially change benefits or obligations under this Plan. Furthermore, for a period of two years following a Change in Control of the Company, the Plan may not be discontinued or terminated or amended in such a manner that decreases the benefits payable to an Eligible Employee or that makes any provision less favorable for an Eligible Employee. | 2Amendments
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Each of the Companies has filed or caused to be filed all federal and material other Tax returns required to have been filed by it and has paid or caused to be paid all material Taxes (whether or not shown on a Tax return and including in the capacity as withholding agent) due and payable by it, except Taxes that are being contested in good faith by appropriate proceedings and for which such Company shall have set aside on its books adequate reserves in accordance with GAAP. There is no current or proposed material Tax assessment, deficiency or other claim against any of the Companies. | 87Taxes
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The Closing of the sale of the Property by Seller to Purchaser will occur on the Closing Date, TIME BEING OF THE ESSENCE, through the escrow established with the Title Company. Seller shall have the right to extend the Closing Date one or more times, to a date no later than thirty (30) days after the scheduled Closing Date to the extent deemed necessary by Seller to satisfy Closing conditions. At Closing, the events set forth in this Article X will occur, it being understood that the performance or tender of performance of all matters set forth in this Article X are mutually concurrent conditions which may be waived by the party for whose benefit they are intended. | 18Closings
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Amounts received with respect to a Phantom Stock Award are taxable as regular income upon settlement. Non-Employee Directors receiving such Awards are solely responsible for payment of all state, federal and local taxes applicable thereto. | 87Taxes
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The provisions of this Agreement shall be binding upon and inure to the benefit of the Investors and their respective successors and assigns. An Investor may transfer or assign, in whole or from time to time in part, to one or more persons its rights hereunder in connection with the transfer of Registrable Securities by such Investor to such person, provided that such Investor complies with all laws applicable thereto, and the provisions of the Purchase Agreement, and provides written notice of assignment to the Company promptly after such assignment is effected, and such person agrees in writing to be bound by all of the provisions contained herein. | 7Assignments
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Throughout the Employment Term, Employee shall serve as President & Chief Executive Officer of the Company and shall diligently perform all such services, acts and things as are customarily done and performed by individuals holding such offices of companies in similar businesses and in similar size to the Company, together with such other duties as may reasonably be requested from time to time by the Board of Directors of the Company or its designee (the “ Board ”). Employee shall periodically and regularly report to the Board. | 35Employment
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Section 6(d) (Return of Property; Inventions), Section 7 (Reaffirmation of Prior Agreements) (incorporating by reference Sections 5, 6 and 7 of the Employment Agreement), Section 8 (Cooperation), Section 9 (Mutual Non-Disparagement) Section 10 (Representations; Warranties; and Covenants), Section 11 (Independent Contractor) and Sections 13-23 hereof shall survive any termination of this Agreement and shall continue in effect. | 85Survival
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All payments made under this Agreement shall be made in U.S. dollars by means of wire transfer to an account designated by AB or CBA, as applicable, from time to time. | 68Payments
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The Presidential Parties shall have performed all obligations to be performed by them, and complied with their agreements and covenants to be performed or complied with by them under this Agreement on or prior to the Closing. | 1Agreements
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Except for fees payable to Lender, no broker, finder or other intermediary has brought about the obtaining, making or closing of the transactions contemplated by the Operative Documents, and no Credit Party has or will have any obligation to any Person in respect of any finder’s or brokerage fees, commissions or other expenses in connection herewith or therewith. | 15Brokers
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This Agreement shall be effective as of the Effective Date and shall expire on March 18, 2017; provided, however, that the expiration of this Agreement shall not affect the Employee’s rights to receive any payments or benefits otherwise due as a result of a Separation from Service occurring prior to the expiration of this Agreement. | 89Terms
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This Agreement may be executed in one or more counterparts. All such separate counterparts together shall constitute one and the same instrument. This Agreement may be executed by “wet ink” or digital means, and distributed by facsimile, digital or electronic (scanned) means. | 26Counterparts
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The Executive agrees that the Company will suffer irreparable damage and injury and will not have an adequate remedy at law if the Executive breaches any provision of the covenants contained in this Section 6 (the “ Restrictive Covenants ”). Accordingly, if the Executive breaches or threatens or attempts to breach the Restrictive Covenants, in addition to all other available remedies, the Company shall be entitled to seek injunctive relief and no or minimal bond or other security shall be required in connection therewith. The Restrictive Covenants are essential terms and conditions to the Company entering into this Agreement, and they shall be construed as independent of any other provision in this Agreement or of any other agreement between the Executive and the Company. The existence of any claim or cause of action that the Executive has against the Company, whether predicated on this Agreement or otherwise, shall not constitute a defense to the Company’s enforcement of the Restrictive Covenants. | 75Remedies
|
Notwithstanding anything in this Agreement to the contrary, but subject to Appendix B, which could negate the treatment provided by this Section 5(a) as a result of Section 280G of the Code, in the event of a Defined Termination of a Participant before the Vesting Date, the Participant’s Option shall immediately vest and become exercisable on the date of the Defined Termination for a number of shares based on either (i) the degree of performance under Section 1(c) attained as of the date of the Defined Termination, and/or (ii) the portion of the performance period under Section 1(c) elapsed as of the date of the Defined Termination, as determined by the Committee, and the Participant’s Option shall no longer be subject to the vesting conditions set forth in Section 1(b) or Section 1(c). | 95Vesting
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Except as necessary for FIG, the Companies, their subsidiaries, and their affiliates, and their respective successors or assigns or Novogratz to specifically enforce or enjoin a breach of this Agreement (to the extent such remedies are otherwise available), the Parties agree that any and all disputes that may arise in connection with, arising out of or relating to this Agreement shall be submitted to binding arbitration in New York, New York, according to the Employment Arbitration Rules of the American Arbitration Association. The Parties agree that each Party shall bear its or his own expenses incurred in connection with any such dispute. This arbitration obligation extends to any and all claims that may arise by and between the Parties or their subsidiaries or their affiliates and their respective successors or assigns. The Parties agree that any pending or contemplated arbitration hereunder may be consolidated with any prior arbitration arising under this agreement to arbitrate or an agreement to arbitrate set forth in the Separation Agreement for the purposes of efficiency and to avoid the possibility of inconsistent awards. An application for such consolidation may be made by any party to this Agreement or the Separation Agreement to the tribunal for the prior arbitration. The tribunal to the prior arbitration shall, after providing all interested parties the opportunity to comment on such application, order that any such pending or contemplated arbitration be consolidated into a prior arbitration if it determines that (i) the issues in the arbitrations involve common questions of law or fact; (ii) no party to either arbitration shall be prejudiced, whether by delay or otherwise, by the consolidation; (iii) any party to the pending or contemplated arbitration which did not join an application for consolidation, or does not consent to such an application, is sufficiently related to the parties in the prior arbitration that their interests were sufficiently represented in the appointment of the tribunal for the prior arbitral tribunal; and (iv) consolidation would be more efficient that separate arbitral proceedings. | 6Arbitration
|
The amounts payable under this Agreement are intended to be exempt or excluded from the application of Code Section 409A, or are otherwise intended to avoid the incurrence of tax penalties under Code Section 409A and, with respect to amounts payable under this Agreement that are subject to Code Section 409A, this Agreement shall in all respects be administered in accordance with Code Section 409A. Each payment under this Agreement shall be treated as a separate payment for purposes of Code Section 409A. In no event may the Executive, directly or indirectly, designate the calendar year of any payment to be made under this Agreement. Prior to the Change in Control but within the time period permitted by the applicable Treasury Regulations (or such later time as may be permitted under Code Section 409A or any IRS or Department of Treasury rules or other guidance issued thereunder), the Company may, in consultation with the Executive, modify the Agreement, in the least restrictive manner necessary and without any diminution in the value of the payments to the Executive, in order to avoid the incurrence of tax penalties under Code Section 409A. Notwithstanding anything herein to the contrary, the tax treatment of the benefits provided under this Agreement is not warranted or guaranteed. Neither the Company, its affiliates nor their respective boards of directors shall be held liable for any taxes, interest, penalties, or other similar monetary amounts owed by Executive or other taxpayers as a result of the Agreement. | 46General
|
Assuming the consents described in clauses (a) through (g) of Section 4.6 are obtained, the execution and delivery by the Company and, if applicable, any other Debtor, of this Agreement, the Plan and the other Transaction Agreements, the compliance by the Company and, if applicable, any other Debtor, with the provisions hereof and thereof and the consummation of the transactions contemplated herein and therein will not (a) conflict with, or result in a breach, modification or violation of, any of the terms or provisions of, or constitute a default under (with or without notice or lapse of time, or both), or result, except to the extent specified in the Plan, in the acceleration of, or the creation of any Lien under, or cause any payment or consent to be required under any Contract to which any Debtor will be bound as of the Closing Date after giving effect to the Plan or to which any of the property or assets of any Debtor will be subject as of the Closing Date after giving effect to the Plan, (b) result in any violation of the provisions of any of the Debtors’ organizational documents (other than, for the avoidance of doubt, a breach or default that would be triggered as a result of the Chapter 11 Cases or the Company’s or any Debtor’s undertaking to implement the Restructuring through the Chapter 11 Cases), or (c) result in any violation of any Law or Order applicable to any Debtor or any of their properties, except in each of the cases described in clause (a) or (c) for any conflict, breach, modification, violation, default, acceleration or Lien which would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. | 61No Conflicts
|
Each party to this Agreement agrees to perform all further acts and to execute and deliver all further documents as may be reasonably necessary to carry out the intent of this Agreement. | 45Further Assurances
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Guarantor (i) waives any right or claim of right to cause a marshalling of Borrower’s assets or to cause Bank to proceed against any of the security for the Debt, including, without limitation, the Loan, the Obligations or the other obligations guaranteed hereby before proceeding against Guarantor, (ii) agrees that any payments required to be made by Guarantor hereunder shall become due on demand in accordance with the terms of Section 2 (and if applicable Section 3) hereof and without presentment to Borrower or Guarantor, demand for payment or protest, or notice of non-payment or protest, and (iii) except as hereinafter provided, expressly waives and relinquishes all rights and remedies accorded by applicable law to guarantors. Without limiting the generality of the foregoing, Guarantor hereby waives all rights (x) to participate in any claim or remedy Bank may now or hereafter have against Borrower or in any collateral which Bank, now has or hereafter may acquire for the obligations guaranteed hereby and (y) except as provided below, to contribution, indemnification, set-off, exoneration or reimbursement, whether from Borrower, any Other Guarantor, or any other Person now or hereafter primarily or secondarily liable for any of Borrower’s obligations to Bank, and whether arising by contract or operation of law or otherwise by reason of Guarantor’s execution, delivery or performance of this Guaranty. Notwithstanding anything to the contrary contained herein or in any other Loan Documents, Guarantor shall not waive, and hereby retains, all rights of subrogation, contribution, indemnification, set-off or reimbursement against Borrower or any Other Guarantor that Guarantor may have (the “ Undersigned’s Rights ”); provided however that (i) this Guaranty shall neither be contingent upon the existence of the Undersigned’s Rights nor subject to any claims or defenses whatsoever which may be asserted in connection with the enforcement or attempted enforcement of the Undersigned’s Rights including, without limitation, any claim that the Undersigned’s Rights were abrogated by any acts of Bank, and (ii) until the Debt and all other amounts guaranteed hereunder (including, without limitation, the Loan and the other Obligations) shall have been paid in full or until the Guarantor is otherwise released from its obligations under this Guaranty, Guarantor hereby postpones and subordinates (A) the exercise of any and all of the Undersigned’s Rights to Bank’s rights against Guarantor under this Guaranty, against Borrower under any of the Loan Documents, or any Other Guarantor and (B) any of the Undersigned’s Rights to any collateral securing the Debt, including, without limitation, the Loan. Notwithstanding anything to the contrary contained herein, except during the existence of an Event of Default, Guarantor shall be entitled to receive and retain indirect distributions from Borrower made in accordance with the terms and conditions of the Borrower’s organizational documents and otherwise permitted under the Loan Agreement. | 68Payments
|
(a) Each Borrower will, and will cause each of its Subsidiaries to, comply with all laws, rules, regulations and orders of any Governmental Authority applicable to it or its property, except where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. | 19Compliance With Laws
|
(a) Except as has not been and would not reasonably be expected to be material to the Foxtail Business, neither Seller nor any of its Subsidiaries is currently, and neither has been since January 1, 2011, in default under or in breach or violation of any applicable Laws or the provisions of any permit, license or approval issued by any Governmental Authority with respect to the Foxtail Business. None of the Governmental Approvals required for the continued conduct of the Foxtail Business as such business is currently being conducted will lapse, terminate, expire or otherwise be impaired as a result of the execution of this Agreement or the consummation of the transactions contemplated hereby or by the Ancillary Agreements, except as has not been and would not reasonably be expected to be material to the Foxtail Business. | 19Compliance With Laws
|
During the Term of this Agreement, Mr. Clarkson shall be reimbursed by the Bank for all reasonable business expenses incurred in connection with the performance of his duties hereunder, and all such reimbursements shall be paid in accordance with the reimbursement policies of the Bank in effect from time to time. | 41Expenses
|
A waiver by either party of a breach of any provision of this Agreement by the other party shall not operate or be construed as a waiver or estoppel of any subsequent breach by such breaching party. No waiver s hall be valid unless in writing and signed by an authorized officer of the Company or the Executive, as applicable. | 97Waivers
|
The Employers shall maintain in effect for the Employee, at the Employers’ sole expense, life insurance equal to three (3) times the Employee’s Base Salary, subject to the terms of the insurance plan specific to him. If the Employee’s benefit limits exceed the amount available under the Employers’ group insurance plan, then the Employee will be entitled to Employer-paid coverage under a different plan, in addition to or in lieu of the group insurance plan, to accommodate the difference. | 51Insurances
|
(i) All foreign, Federal, provincial, and material state and local tax returns and other reports required by applicable Requirements of Law to be filed by any Loan Party have been filed, or extensions have been obtained, and (ii) all Taxes imposed upon any Loan Party or any property of any Loan Party in an aggregate amount for all such Taxes exceeding $2,000,000 that have become due and payable on or prior to the date hereof have been paid, except to the extent contested in good faith by proper proceedings which stay the imposition of any penalty, fine or Lien resulting from the non-payment thereof and with respect to which adequate reserves have been set aside for the payment thereof on the Financial Statements in accordance with GAAP. | 87Taxes
|
The Executive shall be entitled to up to five (5) weeks of annual paid vacation per year, and any additional other leave time as is provided for under the Company's personnel policies applicable to executives of the Company. The Company encourages the taking of vacation time during the year in which the vacation time is earned. At the end of any calendar year unused vacation days will be forfeited. | 93Vacations
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To the extent not preempted by federal law, the Program, and all Award or other agreements hereunder, shall be construed in accordance with and governed by the laws of the state of Delaware without giving effect to principles of conflicts of laws. | 47Governing Laws
|
After the end of the Performance Period, the Committee administering any Performance Awards intended to constitute “performance-based compensation” under Section 162(m) of the Code shall certify the amount, if any, of the Performance Share Award otherwise payable to each Participant. The Committee (or other committee administering such awards) may, in its discretion, reduce the amount of a settlement otherwise to be made in connection with such Performance Share Awards but may not exercise discretion to increase any such amount payable to an employee who has received a Performance Share Award intended constitute “performance-based compensation” under Section 162(m) of the Code. | 44Forfeitures
|
As of the Effective Date, this letter constitutes the final, complete and exclusive agreement between you and the Company with respect to the subject matter hereof and replaces and supersedes any and all other agreements, offers or promises, whether oral or written, made to you by the Company or any of its subsidiaries, affiliates, successors, or assigns (including, without limitation, the Original Employment Letter). | 38Entire Agreements
|
The Participant acknowledges having read and understood the Company’s policies on confidentiality as set forth in the Company’s Code of Ethics and Business Conduct, the Employee Handbook, and the Policy on Trading in Securities (collectively, the “ Confidentiality Policies ”) and hereby agrees that during the Participant’s employment with the Company and its Affiliates and any time thereafter, the Participant will continue to abide by the terms of the Confidentiality Policies, including with respect to any materials or information received in connection with the RSUs. | 20Confidentiality
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This Agreement may be executed in any number of counterparts, each of which when executed, shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument binding upon all of the parties. For purposes of this Agreement, facsimile signatures (including in .pdf, .jpg or other electronic format) shall be deemed originals. | 26Counterparts
|
No waiver by either party at any time of any breach by the other party of, or compliance with, any condition or provision of this Agreement to be performed by the other party, shall be deemed a waiver of any similar or dissimilar provisions or conditions at the same time or any prior or subsequent time. | 97Waivers
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