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In consideration of the Services performed by Consultant, InVivo agrees to pay Consultant in accordance with the terms listed in Exhibit A , or as that Exhibit may be amended from time to time by the parties in accordance with the terms set forth herein. No other amounts shall be payable by InVivo to Consultant. InVivo will pay Consultant within thirty (30) days after InVivo’s receipt and approval of Consultant’s invoice, provided that the invoice clearly lists and delineates the Services performed by Consultant and the time spent thereon. | 68Payments
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The Company is duly incorporated, validly existing and in good standing under the laws of its state of incorporation. The Company has the requisite power and authority to enter into and perform its obligations under the Transaction Documents and to complete the Transactions, in accordance with the terms thereof. The execution and delivery of the Transaction Documents by the Company and the consummation by the Company of the Transactions, have been duly authorized by all necessary corporate action by the Company and no further filing, consent, or authorization is required by the Company, its Board of Directors or its stockholders, other than as contemplated by the SPA. The Transaction Documents have been duly executed and delivered by the Company, and each constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with their respective terms, except as such enforceability may be limited by general principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies and except as rights to indemnification and to contribution may be limited by federal or state securities laws. | 10Authorizations
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This Agreement may be executed simultaneously in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. The provisions of this Section 15.9 shall survive the Closing or earlier termination of this Agreement. | 26Counterparts
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SuckerPunch is in compliance in all material respects with all laws applicable to the Business. SuckerPunch has not received any unresolved written notice of or been charged with the violation of any laws applicable to the Business except where such charge has been resolved. Except as set forth on Schedule 5.13 , there are no pending or, to the knowledge of SuckerPunch, threatened actions or proceedings by any Governmental Authority. | 19Compliance With Laws
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The Company and its Restricted Subsidiaries have complied with all applicable statutes, rules, regulations, orders and restrictions of any domestic or foreign government or any instrumentality or agency thereof having jurisdiction over the conduct of their respective businesses or the ownership of their respective Property, except for any failure to comply which could not reasonably be expected to have a Material Adverse Effect. | 19Compliance With Laws
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This Agreement constitutes an amendment and restatement of the Prior Credit Agreement effective from and after the Closing Date. The execution and delivery of this Agreement shall not constitute a novation of any debt or other obligations owing to the Lenders or Administrative Agent under the Prior Credit Agreement based on facts or events occurring or existing prior to the execution and delivery of this Agreement. On the Closing Date, the credit facilities described in the Prior Credit Agreement, as amended, shall be amended, supplemented, modified and restated in their entirety by the credit facilities described herein, and all loans and other obligations of the Borrower outstanding as of such date under the Prior Credit Agreement, as amended, shall be deemed to be loans and obligations outstanding under the corresponding facilities described herein, without any further action by any Person, except that the Administrative Agent shall make such transfers of funds as are necessary in order that the outstanding balance of such Loans, together with any Loans funded on the Closing Date, reflect the respective Commitments of the Lenders hereunder. | 2Amendments
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(a)Unless previously terminated, the Revolving Commitments shall automatically terminate on the Maturity Date. | 88Terminations
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The Company shall pay Executive an annual rate of base salary of $243,000 in periodic installments in accordance with the Company’s customary payroll practices and applicable wage payment laws, but no less frequently than monthly. The Executive's base salary shall be reviewed at least annually by the by the compensation committee of the Board (the “ Compensation Committee ”) and the Compensation Committee may, but shall not be required to, increase Executive’s base salary during the Employment Term. Executive’s annual base salary shall be adjusted to $250,000 on January 1, 2018 unless the Company does not meet the original budget projection for Revenue and EBITDA for 2017 as set forth in the fiscal year 2017 budget reviewed and agreed with the Board. Executive’s annual base salary, as in effect from time to time, is hereinafter referred to as “ Base Salary ”. | 11Base Salary
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The failure of any party to this Agreement to exercise and/or delay in exercising any power or right hereunder shall not operate as a waiver thereof, nor shall any single or partial exercise of any such power or right preclude any other or further exercise of any other power or right hereunder. Further, the waiver by any party to this Agreement of any right or remedy hereunder on any occasion shall not be construed as a waiver of any such right or remedy on any future occasion. | 63No Waivers
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Except as would not impair in any material respect the ability of the Company to consummate its obligations hereunder, no consent, approval, authorization, order, license, registration or qualification of or with any court or arbitrator or governmental or regulatory authority is required for the execution, delivery and performance by the Company of this Agreement and the consummation of the transactions contemplated by this Agreement. | 5Approvals
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The provisions of this Lease, including this Article 19 , constitute an express agreement between Landlord and Tenant with respect to damage to, or destruction of, all or any portion of the Premises or the Project, and any statute or regulation of the State of California, including without limitation Sections 1932(2) and 1933(4) of the California Civil Code, with respect to any rights or obligations concerning damage or destruction in the absence of an express agreement between the parties (and any other statute or regulation now or hereafter in effect with respect to such rights or obligations), shall have no application to this Lease or to any damage or destruction to all or any portion of the Premises or the Project. | 97Waivers
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No failure on the part of the Administrative Agent or any Bank to exercise and no delay in exercising, and no course of dealing with respect to, any right, power or privilege under this Agreement or any Note shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege under this Agreement or any Note preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The remedies provided herein are cumulative and not exclusive of any remedies provided by law. | 97Waivers
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You will be eligible for 15 days of “paid time off” each year, one week winter break and Company paid holidays consistent with the Company’s vacation and holiday policy. | 93Vacations
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The Holder hereby releases and forever discharge the Company, its officers, directors, employees successors, agents, heirs, personal representatives and assigns, if any, from any and all manner of actions, cause and causes of action, suits, debts, sums of money, accounts, reckonings, bonds, bills, agreements, liens or security interests, promises, damages, judgments, claims and demands whatsoever, in law or in equity, where known or unknown, arising out of or pertaining in any manner whatsoever to the Notes, including without limitation the execution and delivery thereof. | 74Releases
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All representations and warranties made by the Parties pursuant to this Agreement shall survive the execution and delivery of this Agreement. This Agreement and the related documents referred to herein constitute the entire understanding between the Parties with respect to the subject matter contained herein and therein and supersede any prior or contemporaneous understandings and agreements among them respecting such subject matter. Except as specifically set forth herein or therein, neither the Company nor the Shareholder makes any representation, warranty, covenant or undertaking with respect to such matters. | 38Entire Agreements
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The Company has in full force and effect fire and casualty insurance policies with extended coverage, sufficient in amount (subject to reasonable deductions) to allow it to replace any of its properties that might be damaged or destroyed. | 51Insurances
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The representations and warranties of the parties contained in this Agreement shall survive until the first anniversary of the Closing, except (i) the representations and warranties contained in Section 2.1(a) , Section 2.1(b) , Section 2.1(c) and Section 2.1(e) , which will survive indefinitely and (ii) the representations and warranties contained in Section 2.2(a) , Section 2.2(b)(1) and Section 2.2(c) , which will survive until the expiration of the applicable statute of limitations. All of the covenants or other agreements of the parties contained in this Agreement shall survive until fully performed or fulfilled, unless and to the extent that non-compliance with such covenants or agreements is waived in writing by the party entitled to such performance. | 85Survival
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This Agreement has been executed and delivered in the State of Florida and all of the terms and provisions hereof and the rights and obligations of the parties hereto shall be construed and enforced in accordance with the laws thereof. | 47Governing Laws
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The parties hereto agree that irreparable damage would occur and that the parties hereto would not have any adequate remedy at law in the event that any provision of this Letter Agreement were not performed in accordance with its specific terms or were otherwise breached and that money damages or other legal remedies would not be an adequate remedy for any such failure to perform or breach. It is accordingly agreed that, without posting a bond or other undertaking, the parties hereto shall be entitled to injunctive or other equitable relief to prevent breaches of this Letter Agreement and to enforce specifically the terms and provisions of this Letter Agreement in the Delaware Courts, this being in addition to any other remedy to which they are entitled at law or in equity. In the event that any such action is brought in equity to enforce the provisions of this Letter Agreement, no party hereto will allege, and each party hereto hereby waives the defense or counterclaim, that there is an adequate remedy at law. The parties hereto further agree that (a) by seeking any remedy provided for in this Section 14, a party hereto shall not in any respect waive its right to seek any other form of relief that may be available to such party hereto under this Letter Agreement and (b) nothing contained in this Section 14 shall require any party hereto to institute any action for (or limit such party’s right to institute any action for) specific performance under this Section 14 before exercising any other right under this Letter Agreement. | 81Specific Performance
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Neither party hereto (“Recipient Party”) shall during the life of this Agreement or thereafter disclose to any person or use for any purpose any information obtained from the other (“Disclosing Party”) in connection with, or pursuant to, this Agreement or the Project including (but not limited to) the Entsorgafin Technology and any information relating to the Entsorgafin Technology. The Recipient Party shall exercise all precautions reasonably normal in the industry to keep such information secret and to minimize the risk of unauthorized disclosure or use by its employees and officers of information received from the disclosing party provided, however, that the recipient party may disclose such information to: (i) Project funders and prospective Project funders who require such disclosure (but only to the extent necessary) where bona fide necessary in the context of their due diligence for the evaluation of Entsorgafin Technology and participation in the funding; (ii) its responsible officers and employees only to the extent that such disclosure is essential to the design, making, operating the Plant; provided, further that in case the persons listed in Section 15.2. (i) are not required to execute confidentiality agreements with the disclosing party to the extent they are bound by confidentiality obligations pursuant to their respective agreements with the relevant employer and that such confidentiality obligations have a content substantially equivalent to the obligations set out in this Section. The restrictions on use and disclosure of information under this Section shall not apply to any information which the Recipient Party can prove: (i) was already known to it prior to its receipt thereof from the disclosing party; or (ii) was subsequently disclosed to it lawfully by a third party who did not obtain the same (whether directly or indirectly) from the Disclosing Party; or (iii) was in the public domain at the time of receipt by the recipient party or has subsequently entered into the public domain other than by reason of the breach of the provisions of this Section or any obligation of confidentiality owed to the disclosing party; or (iv) was required to be disclosed by law or the rule or procedures of a relevant recognized investment exchange. Upon written consent of the Licensor (such consent not to be unreasonably withheld or delayed), the Licensee may disclose information relating to the Plant to any Regulatory Body, official body or department whether in the Territory or in any other country for the purpose of enabling the Licensee to obtain confirmation that such Plant is acceptable or suitable for use in waste treatment. At the Licensee’s expense the Licensor undertakes to provide such assistance as the Licensee or any such Regulatory Body or other official body or department may reasonably require in the investigation by them as to such suitability or acceptability. | 20Confidentiality
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The Company or any Subsidiary shall have the authority and the right to deduct or withhold, or require a Participant to remit to the Company, an amount sufficient to satisfy federal, state, local and foreign taxes (including the Participant’s FICA or employment tax obligation) required by law to be withheld with respect to any taxable event concerning a Participant arising as a result of this Plan. The Committee may in its discretion and in satisfaction of the foregoing requirement allow a Participant to elect to have the Company withhold shares of Stock otherwise issuable under an Award (or allow the return of shares of Stock) having a Fair Market Value equal to the sums required to be withheld. Notwithstanding any other provision of the Plan, the number of shares of Stock which may be withheld or surrendered with respect to the issuance, vesting, exercise or payment of any Award shall be limited to the number of shares of Stock which have a Fair Market Value on the date of withholding or surrender equal to the aggregate amount of such liabilities based on the minimum statutory withholding rates for federal, state, local and foreign income tax and payroll tax purposes that are applicable to such supplemental taxable income. The Committee shall determine the fair market value of the Stock, consistent with applicable provisions of the Code, for tax withholding obligations due in connection with a broker-assisted cashless Option or Stock Appreciation Right exercise involving the sale of shares to pay the Option or Stock Appreciation Right exercise price or any tax withholding obligation. | 99Withholdings
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Sierra Monitor represents and warrants that the undersigned has the authority to act on behalf of Sierra Monitor and to bind Sierra Monitor and all who may claim through it to the terms and conditions of this Agreement. Executive represents and warrants that he has the capacity to act on his own behalf and on behalf of all who might claim through him to bind them to the terms and conditions of this Agreement. Each party warrants and represents that there are no liens or claims of lien or assignments in law or equity or otherwise of or against any of the claims or causes of action released herein. | 9Authority
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In the event of a Change in Control, the provisions of Section 9 of the Plan will apply to the Performance Share Units regarding acceleration of vesting, except that, if a Change in Control occurs prior to the end of the Performance Period any PSUs awarded will fully vest and be paid out at target performance levels. If such event occurs between the end of the Performance Period and the Vesting Date, any PSU awards will be paid at the actual performance levels certified by the Committee. Payment will be made as soon as practicable following each such event. Awards may not fully vest in the event of a Change in Control if, in connection with the transactions resulting in the Change in Control, the Company agrees to the assumption of the PSUs or the substitution for the PSUs (or as otherwise described in the Plan). | 17Change In Control
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The Administrative Agent shall have received multiple original counterparts of this Agreement duly executed by the Borrower, the Guarantors, the Administrative Agent, and the Lenders constituting the Majority Lenders. | 1Agreements
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The Company shall withhold any and all taxes from payment of the Transaction Bonus as may be required by applicable law. | 99Withholdings
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The $347,500 paid by the Purchaser for the Acquisition hereunder shall be used by the Company to pay all of the amounts set forth in Schedule 1 and Schedule 1(a) and the outstanding Indebtedness and/or liabilities set forth in Schedule 3.1(c) , along with compromising and settling the Indebtedness and/or liabilities list in Schedule 4.6 , after which and immediately following the Closing the Company shall have no outstanding Indebtedness and/or liabilities of any nature to any Person. | 92Use Of Proceeds
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This Notice may be executed in multiple counterparts, each of which shall be deemed an original, and together the counterparts shall constitute one instrument. | 26Counterparts
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If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the Parties hereto shall use their best efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the Parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any such terms, provisions, covenants and restrictions which may be hereafter declared invalid, illegal, void or unenforceable. | 79Severability
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Titles are provided herein for convenience only and are not to serve as a basis for interpretation or construction of this Award Agreement. | 90Titles
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In addition to being entitled to exercise all rights and remedies provided herein or granted by Law, including recovery of damages, each of the Purchasers and the Company will be entitled to specific performance under the Transaction Documents. The parties agree that monetary damages may not be adequate compensation for any loss incurred by reason of any breach of obligations described in the foregoing sentence and hereby agrees to waive in any action for specific performance of any such obligation the defense that a remedy at law would be adequate. | 75Remedies
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Restricted Stock Unit Awards may (but need not) be made subject to Vesting Conditions based upon the satisfaction of such Service requirements, conditions, restrictions or performance criteria, including, without limitation, Performance Goals as described in Section 10.4, as shall be established by the Committee and set forth in the Award Agreement evidencing such Award. The Committee, in its discretion, may provide in any Award Agreement evidencing a Restricted Stock Unit Award that, if the satisfaction of Vesting Conditions with respect to any shares subject to the Award would otherwise occur on a day on which the sale of such shares would violate the provisions of the Trading Compliance Policy, then the satisfaction of the Vesting Conditions automatically shall be determined on the first to occur of (a) the next trading day on which the sale of such shares would not violate the Trading Compliance Policy or (b) the last day of the calendar year in which the original vesting date occurred. | 95Vesting
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This Section 18 is a continuing guaranty and shall (a) remain in full force and effect until the later of (i) the cash payment in full of the Guaranteed Obligations (other than indemnification obligations as to which no claim has been made) and all other amounts payable under this Section 18 and (ii) the Maturity Date, (b) be binding upon the Guarantors, and their successors and assigns and (c) inure to the benefit of and be enforceable by the Agent and the Lenders and their successors, pledgees, transferees and assigns. Without limiting the generality of the foregoing clause (c), any Lender may pledge, assign or otherwise transfer all or any portion of its rights and obligations under this Agreement (including, without limitation, all or any portion of its Commitments and the Advances owing to it) to any other Person, and such other Person shall thereupon become vested with all the benefits in respect thereof granted such Lender herein or otherwise, in each case as provided in Section 14.1 . | 7Assignments
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No provision of this Agreement or any of the other Loan Documents shall be construed against or interpreted to the disadvantage of any party hereto by any Governmental Authority by reason of such party having or being deemed to have structured or dictated such provision. | 55Interpretations
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As a result of the Existing Defaults, Lender is permitted to exercise its default rights and remedies as provided in the Credit Agreement without further notice or demand. All new advances continue to be in the sole discretion of Lender and neither the entering into this Amendment nor the making of additional advances by Lender waives any of the default rights and remedies of Lender under Section 13.02 of the Credit Agreement or otherwise. All default rights and remedies of Lender are therefore reserved. | 63No Waivers
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This Agreement, including Exhibit A and Schedules 1, 2, 3 and 4, constitutes the complete, final and exclusive embodiment of the entire agreement between Executive and the Company with regard to this subject matter. It is entered into without reliance on any promise or representation, written or oral, other than those expressly contained herein, and it supersedes any other such promises, warranties or representations. This Agreement may not be modified or amended except in a writing signed by both the Executive and a duly authorized officer of the Company. | 52Integration
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Such Grantor will pay when due all taxes, assessments and governmental charges and levies upon the Collateral owned by such Grantor, except (i) those which are being contested in good faith by appropriate proceedings and with respect to which adequate reserves have been set aside in accordance with GAAP and with respect to which no Lien exists, and (ii) those which by reason of the amount involved or the remedies available to the taxing authority could not reasonably be expected to have a Material Adverse Effect. | 87Taxes
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All information relating to or concerning the Company or any of its Subsidiaries set forth in this Agreement and provided to the Buyer pursuant to Section 2(d) hereof and otherwise in connection with the transactions contemplated hereby is true and correct in all material respects and the Company has not omitted to state any material fact necessary in order to make the statements made herein or therein, in light of the circumstances under which they were made, not misleading. No event or circumstance has occurred or exists with respect to the Company or any of its Subsidiaries or its or their business, properties , prospects, operations or financial conditions, which , under applicable law, rule or regulation, requires public disclosure or announcement by the Company but which has not been so publicly announced or disclosed (assuming for this purpose that the Company’s reports filed under the 1934 Act are being incorporated into an effective registration statement filed by the Company under the 1933 Act). | 31Disclosures
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Each Party shall bear its own costs associated with its participation in the Committees, including but not limited to the costs of travel and expenses directly associated with participation in the Committees. | 41Expenses
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If any term, provision, covenant or restriction contained in the Award is held by a court or a federal regulatory agency of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions contained in the Award shall remain in full force and effect, and shall in no way be affected, impaired or invalidated. | 79Severability
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This Agreement shall be construed in accordance with, and all actions arising under or in connection therewith shall be governed by, the internal laws of the State of Illinois. | 47Governing Laws
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If any material condition or provision contained herein is held to be invalid, void, or unenforceable by a final judgment of any court or arbitrator, then the remaining provisions of this Agreement shall remain in full force and effect and the unenforceable provision shall be deemed modified to the limited extent required to permit its enforcement in a manner most closely representing the intention of the parties as expressed herein. | 79Severability
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This Restricted Stock Grant, together with the Plan, contains the entire agreement between the parties with respect to the subject matter and supersedes any and all prior understandings, agreements or correspondence between the parties. | 38Entire Agreements
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Each Credit Extension shall bear interest on the outstanding principal amount thereof from the date when made until paid in full at a rate per annum equal to the Applicable Interest Rate. Each Lender may, upon the failure of Borrower to pay any fees or interest as required herein, capitalize such interest and fees and begin to accrue interest thereon until paid in full, which such interest shall be at a rate per annum equal to the Applicable Interest Rate unless and until the Default Rate shall otherwise apply. All other Obligations shall bear interest on the outstanding amount thereof from the date they first become payable by Borrower under the Financing Documents until paid in full at a rate per annum equal to the Applicable Interest Rate unless and until the Default Rate shall otherwise apply. Interest on the Credit Extensions and all fees payable under the Financing Documents shall be computed on the basis of a 360-day year and the actual number of days elapsed in the period during which such interest accrues. In computing interest on any Credit Extension or other advance, the date of the making of such Credit Extension or advance shall be included and the date of payment shall be excluded; provided, however, that if any Credit Extension or advance is repaid on the same day on which it is made, such day shall be included in computing interest on such Credit Extension or advance. As of each Applicable Interest Rate Determination Date, Agent shall determine (which determination shall, absent manifest error in calculation, be final, conclusive and binding upon all parties) the interest rate that shall apply to the Credit Extensions. | 54Interests
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From and after the Effective Date, the following Lenders shall be documentation agents: TD Securities (USA) LLC, New York Branch, Barclays Bank PLC, Citizens Bank, N.A., SunTrust Bank, PNC Bank, National Association, Morgan Stanley Bank, N.A., Morgan Stanley Senior Funding, Inc., Royal Bank of Canada, Goldman Sachs Bank USA, Bank of America, N.A., The Bank of Tokyo-Mitsubishi UFJ, Ltd., and Deutsche Bank AG New York Branch. | 90Titles
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The validity, interpretation, construction and performance of this Agreement will be governed by and construed in accordance with the substantive laws of the State of Ohio, without giving effect to the principles of conflict of laws of such State. Further, any litigation arising out of this Agreement shall be venued in a court of competent jurisdiction located in Cuyahoga County, Ohio. In executing this Agreement, the Executive acknowledges that the Executive has purposefully availed himself or herself of the benefits and privileges of the jurisdictions of such courts, that the Executive waives any objections of the basis of forum, venue, and/or jurisdiction, and that the Executive willfully and knowingly submits himself or herself to the jurisdiction of such courts. The Executive further agrees that any litigation concerning, in whole or in part, Section 8 of this Agreement shall be filed either in the United States District Court for the Northern District of Ohio located in Cleveland, Ohio or in the Cuyahoga County Court of Common Pleas, Commercial Docket located in Cleveland, Ohio. | 47Governing Laws
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Parent will, and will cause each of the Subsidiaries to, 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, licenses, permits, privileges, franchises, patents, copyrights, trademarks and trade names material to the conduct of its business, except (other than with respect to legal existence of any Loan Party) where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect; provided that the foregoing shall not prohibit any merger, consolidation, sale, transfer, lease, disposition, liquidation or dissolution permitted under Section 6.04 or 6.08. | 40Existence
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This Agreement constitutes the entire agreement between Company and Seller and supersedes all prior agreements and understandings, both written and oral, among the Parties with respect to the subject matter hereof. | 38Entire Agreements
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Each Agent and each Lender agrees (on behalf of itself and each of its affiliates, directors, officers, employees and representatives) to use reasonable precautions to keep confidential, in accordance with its customary procedures for handling confidential information of this nature and in accordance with safe and sound practices of comparable commercial finance companies, any non-public information supplied to it by the Loan Parties pursuant to this Agreement or the other Loan Documents which is identified in writing by the Loan Parties as being confidential at the time the same is delivered to such Person (and which at the time is not, and does not thereafter become, publicly available or available to such Person from another source not known to be subject to a confidentiality obligation to such Person not to disclose such information), provided that nothing herein shall limit the disclosure by any Agent or any Lender of any such information (i) to its Affiliates and to its and its Affiliates' respective equityholders (including, without limitation, partners), directors, officers, employees, agents, trustees, counsel, advisors and representatives (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such information and instructed to keep such information confidential in accordance with this Section 12.19); (ii) to any other party hereto; (iii) to any assignee or participant (or prospective assignee or participant) or any party to a Securitization so long as such assignee or participant (or prospective assignee or participant) or party to a Securitization first agrees, in writing, to be bound by confidentiality provisions similar in substance to this Section 12.19; (iv) to the extent required by any Requirement of Law or judicial process or as otherwise requested by any Governmental Authority; (v) to the National Association of Insurance Commissioners or any similar organization, any examiner, auditor or accountant or any nationally recognized rating agency or otherwise to the extent consisting of general portfolio information that does not identify Loan Parties; (vi) in connection with any litigation to which any Agent or any Lender is a party; (vii) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder; or (viii) with the consent of the Borrower. | 20Confidentiality
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If any provision of the Certificate is or becomes or is deemed to be invalid, illegal or unenforceable in any jurisdiction or would disqualify the Certificate under any law deemed applicable by the Committee, such provision shall be construed or deemed amended to conform to applicable laws, or if it cannot be so construed or deemed amended without, in the determination of the Committee, materially altering the purpose or intent of the Plan or the Certificate, such provision shall be stricken as to such jurisdiction or the Certificate, and the remainder of the Certificate shall remain in full force and effect. | 79Severability
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Upon the settlement of the Award in accordance with Section 2(c) hereof, the Participant shall recognize taxable income in respect of the Award and the Company shall report such taxable income to the appropriate taxing authorities in respect of the Award as it determines to be necessary and appropriate. The Company shall have the right to require the Participant to remit to the Company, or to withhold from amounts payable to the Participant, as compensation or otherwise, an amount sufficient to satisfy all federal, state and local withholding tax requirements, as applicable. The Participant shall satisfy any required withholding obligation with respect to the Award in cash. | 87Taxes
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The execution, delivery and performance by the Company of this Agreement and the other Transaction Documents to which it is a party, the issuance and sale of the Common Shares and the consummation by the Company of the transactions contemplated hereby and thereby do not and will not: (i) conflict with or violate any provision of the Company’s certificate or articles of incorporation, bylaws or other organizational or charter documents, (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, result in the creation of any Lien (other than a Permitted Lien) upon any of the material properties or assets of the Company or any Subsidiary, or give to others any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any material agreement, credit facility or debt instrument (evidencing a Company or Subsidiary debt or otherwise) to which the Company or any Subsidiary is a party or by which any material property or asset of the Company or any Subsidiary is bound or affected, or (iii) subject to the Required Approvals, conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Company or a Subsidiary is subject (including federal and state securities laws and regulations), or by which any material property or asset of the Company or a Subsidiary is bound or affected; except in the case of each of clauses (ii) and (iii), such as could not reasonably be expected to result in a Material Adverse Effect. | 61No Conflicts
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The Participant acknowledges and agrees that in the performance of the Participant’s duties to the Company during the Participant’s employment with the Company, the Participant shall be brought into frequent contact with existing and potential customers of the Company throughout the world. The Participant also agrees that trade secrets and confidential information of the Company, more fully described in Section 10.8, gained by the Participant during the Participant’s association with the Company, have been developed by the Company through substantial expenditures of time, effort and money and constitute valuable and unique property of the Company. The Participant further understands and agrees that the foregoing makes it necessary for the protection of the Company’s business that the Participant not compete with the Company during the Participant’s employment with the Company and not compete with the Company for a reasonable period thereafter, as further provided in this Section 10. | 1Agreements
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This Agreement shall take effect as of the Effective Date and, subject to the provisions of Section 6.01, shall continue in force for an initial period of one (1) year (the “ Initial Term ”). Thereafter, unless either party notifies the other of its intent not to renew the Term of this Agreement at least 30 days prior to the end of the then current Term, the Term shall be automatically renewed upon expiration for successive renewal Terms of one (1) year (each a “ Renewal Term ” and collectively with the Initial Term, the “ Term ”). | 89Terms
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This Intellectual Property Security Agreement shall be governed by, and construed and interpreted in accordance with, the law of the State of New York. | 47Governing Laws
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Notwithstanding the other provisions hereof, this Agreement is intended to comply with the requirements of section 409A of the Code, to the extent applicable, and this Agreement shall be interpreted to avoid any penalty sanctions under section 409A of the Code. Accordingly, all provisions herein, or incorporated by reference, shall be construed and interpreted to comply with section 409A and, if necessary, any such provision shall be deemed amended to comply with section 409A of the Code and regulations thereunder. If any payment or benefit cannot be provided or made at the time specified herein without incurring sanctions under section 409A of the Code, then such benefit or payment shall be provided in full at the earliest time thereafter when such sanctions will not be imposed. For purposes of section 409A of the Code, each payment made under this Agreement shall be treated as a separate payment. In no event may the Executive, directly or indirectly, designate the calendar year of payment. | 55Interpretations
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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 the Purchasers, severally and not jointly, agree to purchase, up to an aggregate of $2,500,000 of Shares. Each Purchaser shall deliver to the Company, via wire transfer, immediately available funds equal to such Purchaser’s Subscription Amount as set forth on the signature page hereto executed by such Purchaser and the Company shall deliver to each Purchaser its respective Shares as determined pursuant to Section 2.2(a), and the Company and each 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 the offices of Company Counsel or such other location as the parties shall mutually agree. | 18Closings
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Notwithstanding any other provision of the Plan to the contrary, the Employer shall withhold from any amounts payable hereunder (or from other amounts payable by the Employer to the Participant) any taxes or other amounts required by any governmental authority to be withheld. If FICA taxes must be withheld in connection with amounts credited hereunder before payments are otherwise due hereunder and if there are no other wages from which to withhold them, the Employer shall pay such FICA taxes generated by such payment (and taxes under Code Section 3401 triggered thereby and additional taxes under Section 3401 attributable to pyramiding) but no more and the Participant’s benefit hereunder shall be reduced by an amount equal to the Actuarial Equivalent of such amount. | 99Withholdings
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It is specifically understood and agreed that any breach of the provisions of this Agreement, including, without limitation, Sections 7 and 8 hereof, by the Executive may result in irreparable injury to the Company and its subsidiaries and affiliates, that the remedy at law alone may be inadequate remedy for such breach and that, in addition to any other remedy it may have, the Company shall be entitled to seek the specific performance of this Agreement by the Executive and to seek both temporary and permanent injunctive relief (to the extent permitted by law), without the necessity of proving actual damages. To the extent that any court action is permitted consistent with or to enforce Section 7 or 8 of this Agreement, the parties hereby agree to the sole and exclusive jurisdiction of the Supreme Court of the State of New York (Albany County) and the United States District Court for the Northern District of New York (City of Albany). Accordingly, with respect to any such court action, the Executive (i) submits to the personal jurisdiction of such courts, (ii) consents to service of process, and (iii) waives any other requirement (whether imposed by statute, rule of court or otherwise) with respect to personal jurisdiction or service of process. | 81Specific Performance
|
Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall be deemed given and effective on the earliest of: (a) the date of transmission, if such notice or communication is delivered via facsimile or e-mail at the facsimile number or e-mail address set forth on the signature pages attached hereto at or prior to 5:30 p.m. (New York City time) on a Trading Day, (b) the next Trading Day after the date of transmission, if such notice or communication is delivered via facsimile or e-mail at the facsimile number or e-mail address set forth on the signature pages attached hereto on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (c) the second (2 nd ) Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service or (d) upon actual receipt by the party to whom such notice is required to be given. The address for such notices and communications shall be as set forth on the signature pages attached hereto. To the extent that any notice provided pursuant to any Transaction Document constitutes, or contains, material, non-public information regarding the Company or any Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K. | 65Notices
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Each Party acknowledges and agrees that the other Party would be damaged irreparably if any provision of this Agreement is not performed in accordance with its specific terms or is otherwise breached by such Party. Accordingly, each Party agrees that the other Party will be entitled to an injunction or injunctions to prevent breaches of the provisions of this Agreement by such Party and to enforce specifically this Agreement and its terms and provisions in any action instituted in any court of the United States or any state thereof having jurisdiction over such Party and the matter, subject to Section 7.04 and Section 7.05 , in addition to any other remedy to which it may be entitled, in equity or at Law. | 81Specific Performance
|
Other than to the extent any written employment agreement between the Grantee and the Company provides for (a) treatment different or (b) the definition of terms different, than that which is provided by this Agreement and Appendix A and B, this Agreement and Appendix A and B constitutes the entire understanding of the parties on the subjects covered. The Grantee expressly warrants that he or she is not executing this Agreement and Appendix A and B in reliance on any promises, representations, or inducements other than those contained herein. | 38Entire Agreements
|
The representations and warranties of the Purchaser contained in this Agreement shall be true and correct in all material respects (other than those which are qualified as to materiality, which shall be true and correct in all respects) on and as of the Closing Date with the same force and effect as though made on and as of the Closing Date (except that representations and warranties made as of a specific date shall be true and correct in all material respects (except as aforesaid) on such date); each Purchaser shall have in all material respects performed and complied with all covenants and agreements required by this Agreement to be performed or complied with by it on or prior to the Closing Date; and each Purchaser shall have delivered to the Seller a certificate, dated the date of the Closing Date and signed by the applicable Purchaser, to the foregoing effect. | 76Representations
|
Upon the payment of any Annual Incentive, the Corporation (or applicable Subsidiary making such payment, as the case may be) shall have the right to deduct the amount of any federal, state or local taxes that the Corporation or any Subsidiary may be required to withhold with respect to such payment. | 86Tax Withholdings
|
Subject to Section 2.2, the term of employment of Executive by Luminex shall be two (2) year commencing on the Effective Date and shall thereafter automatically renew for successive additional one‑year terms unless either party provides the other with written notice of its intent not to renew this Agreement at least sixty (60) days prior to the end of the Term (including any renewal term, as applicable), unless terminated earlier pursuant to the provisions of this Agreement. | 89Terms
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The Company does not have any predecessor corporation(s), or any subsidiaries, and does not own, beneficially or of record, any shares or any interest in any other corporation or other business entity. | 83Subsidiaries
|
At the request of the Company, each Holder shall deliver a duly completed and executed written notice (each such notice, a “ Notice and Questionnaire ”) to the Company (i) notifying the Company of such Holder’s desire to include Registrable Securities held by it in a Resale Shelf Registration Statement, (ii) containing all information about such Holder required to be included in such registration statement in accordance with applicable law, including Item 507 of Regulation S-K promulgated under the Securities Act, as amended from time to time, or any similar successor rule thereto, and (iii) pursuant to which such Holder agrees to be bound by the terms and conditions hereof. At the time a Resale Shelf Registration Statement becomes effective, each Holder that has delivered a duly completed and executed Notice and Questionnaire to the Company on or prior to the date ten (10) Business Days prior to such time of effectiveness shall be named as a selling securityholder in such Resale Shelf Registration Statement and the related prospectus in such a manner as to permit such Holder to deliver such prospectus to purchasers of Registrable Securities in accordance with applicable law. If required by applicable law, subject to the terms and conditions hereof, after effectiveness of the Resale Shelf Registration Statement, the Company shall file a supplement to such prospectus or amendment to the Resale Shelf Registration Statement not less than once a quarter as necessary to name as selling securityholders therein any Holders that provide to the Company a duly completed and executed Notice and Questionnaire and shall use commercially reasonable efforts to cause any post-effective amendment to such Resale Shelf Registration Statement filed for such purpose to be declared effective by the Commission as promptly as reasonably practicable after the filing thereof. Any Holder that has not delivered a duly completed and executed Notice and Questionnaire shall not be entitled to be named as a Selling Holder in, or have the Registrable Securities held by it covered by, a Resale Shelf Registration Statement. | 65Notices
|
Each Party shall perform its obligations under this Contract, and Buyer shall transport and use the gypsum to be delivered hereunder, in accordance with all applicable federal, state, county, municipal and local laws, ordinances and regulations, including the United States Environmental Protection Agency final rule “Hazardous and Solid Waste Management System; Disposal of Coal Combustion Residuals from Electric Utilities,” 40 CFR Parts 257 and 261, as published at 80 Fed. Reg. 21,302 (April 17, 2015) and subsequently amended at 80 Fed. Reg. 37,988 (July 2, 2015) (the “ CCR Rule ”) (collectively, “ Applicable Laws ”). Buyer represents that it is a sophisticated user of gypsum, it is aware of the regulated (including but not limited to arsenic, beryllium, cadmium, lead, chromium, mercury and nickel) and unregulated elements and materials which may be contained in gypsum, and it agrees to comply with all Applicable Laws which protect its employees, third parties, consumers and the environment relating to the use of the gypsum to be delivered hereunder. | 4Applicable Laws
|
This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of New York; provided that, the Administrative Agent, each L/C Issuer, the Swing Line Lender and each Lender shall retain all rights arising under applicable federal law. | 47Governing Laws
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The Borrower shall use the proceeds of the Incremental Term B Loans on the Effective Date to repay outstanding Revolving Loans under the Credit Agreement and to pay fees and expenses in connection with the First Amendment and this Agreement. | 92Use Of Proceeds
|
No waiver by either party of any condition or of the breach by the other of any term or covenant contained in this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed or construed as a further or continuing waiver of any such condition or breach or a waiver of any other condition or of the breach of any other term or covenant contained in this Agreement. Moreover, the failure of either party to exercise any right hereunder shall not bar the later exercise thereof. | 97Waivers
|
Reimbursement from the Company for reasonable and necessary out-of-pocket travel and other expenses incurred by the Consultant in rendering services under this Agreement, subject to providing documentation of the same to the Company. Company agrees to pay for all additional information requirements, reports, etc. needed for Consultant to perform his duties, however all such expenses, including travel shall be agreed upon by the Company in writing in advance. | 41Expenses
|
The Company has filed all quarterly and annual reports, to the best of its knowledge, all other reports, schedules, forms, statements and other documents required to be filed by it with the SEC pursuant to the reporting requirements of the Securities Exchange Act of 1934, as amended (the "1934 Act") (all of the foregoing filed prior to the date hereof and all exhibits included therein and financial statements and schedules thereto and documents (other than exhibits to such documents) incorporated by reference therein, being hereinafter referred to herein as the "SEC Documents"). Upon written request the Company will deliver to the Buyer true and complete copies of the SEC Documents, except for such exhibits and incorporated documents. As of their respective dates or if amended, as of the dates of the amendments, the SEC Documents complied in all material respects with the requirements of the 1934 Act and the rules and regulations of the SEC promulgated thereunder applicable to the SEC Documents, and none of the SEC Documents, at the time they were filed with the SEC, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. None of the statements made in any such SEC Documents is, or has been, required to be amended or updated under applicable law (except for such statements as have been amended or updated in subsequent filings prior the date hereof). As of their respective dates or if amended, as of the dates of the amendments, the financial statements of the Company included in the SEC Documents complied as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto. Such financial statements have been prepared in accordance with United States generally accepted accounting principles, consistently applied, during the periods involved and fairly present in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries as of the dates thereof and the consolidated results of their operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). The Company is subject to the reporting requirements of the 1934 Act. | 43Financial Statements
|
The term (the “Term”) of this Sublease shall be for the period commencing (i) as to the Phase I Premises, on the date Master Lessor delivers possession of the entirety of the Phase I Premises to Sublessor, which is anticipated to be July 1, 2017 (the “Phase I Delivery Date”) and (ii) as to the Phase II Premises, on the date Master Lessor delivers possession of the entirety of the Phase II Premises to Sublessor, which is anticipated to be August 1, 2017 (the “Phase II Delivery Date”), and ending on July 31, 2019 (the “Expiration Date”), unless this Sublease is sooner terminated pursuant to its terms. The earlier of the Phase I Delivery Date and Phase II Delivery Date (each, a “Delivery Date”) shall be referred to herein as the “Commencement Date”. Notwithstanding that the defined terms for the Phases include “I” and “II”, Sublessee acknowledges that the Phase II Delivery Date, and thereby the Commencement Date, could occur before the Phase I Delivery Date. To the extent an Extension Option (as defined below) is exercised pursuant to Paragraph 25 herein, the Term of this Sublease shall be extended to include the Extension Period (as defined below). References in this Sublease to the “Subleased Premises” shall not include the Phase I Premises until the Phase I Delivery Date and shall not include the Phase II Premises until the Phase II Delivery Date. The parties acknowledge that Sublessee is already in occupancy of the first (1 st ) through fifth (5 th ) floors of the Building as a subtenant of the current tenants therein and Sublessor shall accordingly not be required to actually tender delivery of the first (1 st ) through fifth (5 th ) floors of the Building. The parties also acknowledge that an unaffiliated third party is currently in occupancy of the sixth (6 th ) floor of the Building as a subtenant of the current tenant therein. Sublessor shall use commercially reasonable efforts (without requiring Sublessor to expend more than a nominal sum unless Sublessee reimburses Sublessor for such expenses) to cause Master Lessor to enforce the termination provisions of the existing lease for the sixth (6 th ) floor of the Building such that the Phase I Delivery Date occurs on July 1, 2017. | 89Terms
|
Each of Seller and the Company has the necessary power and authority to enter into the Transaction Documents to which it is party, to perform its obligations thereunder and to consummate the transactions contemplated therein. All corporate or limited liability company actions or proceedings to be taken by or on the part of Seller and the Company to authorize and permit the due execution and valid delivery by each of Seller and the Company of the Transaction Documents to which it is a party and each other agreement instrument or certificate required to be duly executed and validly delivered by it pursuant thereto, the performance by Seller and the Company of its obligations thereunder, and the consummation by Seller and the Company of the transactions contemplated therein, have been duly and properly taken. The Transaction Documents have been duly executed and delivered by Seller and the Company, as applicable, and constitute the legal, valid, and binding obligation of Seller and the Company, as applicable, enforceable in accordance with their terms, except as such enforceability (i) may be limited by applicable bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws affecting the enforcement of creditors' rights and remedies generally and (ii) is subject to general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law). | 9Authority
|
From and after the Closing, (a) Buyer will (i) remit to Seller any payment that Buyer or any of Buyer’s Affiliates receives or collects in respect of any Excluded Asset and (ii) reimburse Seller for any payment Seller or any of Seller’s Affiliates makes to a third-party in payment of an Assumed Liability and (b) Seller will (i) remit to Buyer any payment or settlement that Seller or any of Seller’s Affiliates receives or collects on any note or receivable that constitutes, or any sale of energy or capacity in the wholesale electric market from, an Acquired Asset including any payment or settlement made for Transition Services under Section 5.15 and (ii) reimburse Buyer for any payment Buyer or any of Buyer’s Affiliates makes to a third-party in payment of a Retained Liability. Each Party will provide the other Party with reasonable detail regarding any such payments. Any remittance or reimbursement required to be made by a Party pursuant to this Section 5.16 will be (x) made net of any outstanding remittance or reimbursement owed to such Party pursuant to this Section 5.16 and (y) made promptly, and in any event not later than the fifteenth (15th) day of the calendar month immediately following the calendar month in which the payment giving rise to such remittance or reimbursement, as applicable, was received or made. | 68Payments
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Other than Dawson James, neither the Company nor any of the officers, directors or employees of the Company has employed any broker or finder in connection with the transaction contemplated by this Agreement. The Company shall indemnify Intrexon from and against any broker’s, finder’s or agent’s fees for which the Company is responsible. | 15Brokers
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If any term, provision, agreement, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, void or unenforceable, the remainder of the terms, provisions, agreements, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated so long as the economic and legal substance of the transactions contemplated hereby are not affected in any manner materially adverse to any party hereto. Upon such a determination, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties hereto as closely as possible in a reasonably acceptable manner in order that the transactions contemplated hereby may be consummated as originally contemplated to the fullest extent possible. | 79Severability
|
Executive shall be entitled to receive such benefits and fringe benefits, subject to the Company’s policies and guidelines for the same, if any, as are approved from time to time by the Company for all of the Company’s senior executives. | 46General
|
This Letter Agreement constitutes a complete and exclusive statement of the terms of the agreement between the parties and supersedes all prior agreements with respect to its subject matter. | 38Entire Agreements
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In case any one or more of the provisions contained in this Guaranty should be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, and the parties hereto shall enter into good faith negotiations to replace the invalid, illegal or unenforceable provision. | 79Severability
|
Should a dispute arise in connection with this letter agreement or your employment with the Company, the parties will first submit the dispute to non-binding mediation. The Company will pay for the mediation and select the mediator. Should the dispute remain unresolved after one day of mediation, the Company and you agree that said dispute or controversy arising out of, in relation to, or in connection with this letter agreement or your employment with the Company, or the making, interpretation, construction, performance or breach of this letter agreement shall be finally settled by binding arbitration in Massachusetts under the then current expedited rules of the American Arbitration Association by one (1) arbitrator mutually selected by the parties or in the event the parties cannot mutually agree, then appointed in accordance with such rules. The arbitrator may grant injunctive or other relief in such dispute or controversy. The decision of the arbitrator, shall be final, conclusive and binding on the parties to the arbitration. Judgment may be entered on the arbitrator’s decision in any court of competent jurisdiction. The parties agree that, any provision of applicable law notwithstanding, they will not request and the arbitrator shall have no authority to award, punitive or exemplary damages against any party. Notwithstanding anything in this Section 9 to the contrary, claims may be made in any Massachusetts court of competent jurisdiction by you or the Company for equitable relief to prevent a breach or threatened breach of any confidentiality or non-competition obligations of the other party. If you are successful in the arbitration, as determined by the arbitrator, the arbitrator shall award you your reasonable legal fees and expenses. | 6Arbitration
|
The Plan shall be governed and construed in accordance with ERISA and any other applicable federal law and, to the extent not preempted by federal law, the laws of the State of Texas. Except as otherwise mandated by federal law, exclusive jurisdiction over all disputes and actions arising under, or directly or indirectly relating to the Plan, shall be in Austin, Texas. | 47Governing Laws
|
Payment by the Borrowers of an upfront fee related to the Term Loan equal to $5,000 and a waiver fee related to the suspension of the Consolidated Asset Coverage Ratio for the periods described herein equal to $5,000. | 42Fees
|
Licensee may assign, in whole or in part, in its sole discretion and without the consent of Licensor, this Agreement and any or all of its rights, interests and obligations hereunder to any other Person, but no such assignment shall relieve Licensee of its obligations under this Agreement if such assignee does not perform such obligations. Licensor and the Additional Parties may not assign this Agreement or any of their respective rights, interests, or obligations hereunder, in whole or in part, by operation of Law or otherwise to any other Person without the prior written consent of Licensee; provided , however , that Licensor may assign its rights to receive royalty payments pursuant to Sections 4.02 and 4.03 of this Agreement, and other ancillary rights as reasonably necessary to assign its rights to receive royalty payments, to another Person without the prior written consent of Licensee. Subject to the first two sentences of this Section 8.09, this Agreement will be binding upon, inure to the benefit of and be enforceable by, the Parties and their respective successors and assigns. | 7Assignments
|
If the parties sign this Agreement in counterparts, each counterpart constitutes an original, and all counterparts, collectively, constitute only one agreement. The signatures of all the parties need not appear on the same counterpart, and delivery of a signed counterpart signature page by fax or other electronic transmission is as effective as signing and delivering an original. | 26Counterparts
|
For purposes of this section 6, the term “Company” includes the Company’s subsidiary and affiliated entities. All such subsidiary and affiliated entities shall be deemed third party beneficiaries of this Agreement, and shall be entitled to enforce the provisions of this section 6. | 83Subsidiaries
|
The Company shall be entitled to withhold from any amounts to be paid or benefits provided to Executive hereunder any federal, state or local withholding, FICA and FUTA contributions, or other taxes, charges or deductions which it is from time to time required to withhold. | 99Withholdings
|
This Agreement shall be effective as of the Effective Date and, unless terminated earlier by mutual written agreement of the Parties or pursuant to Sections 9.2, 9.3 or 9.4 below, shall continue in effect, on a country-by-country and Product-by-Product basis, until the expiration of the Royalty Term for such Product (the “ Term ”). Subject to the applicable terms of any Upstream Agreement, upon expiration of each Term with respect to a Product in a particular country in the Licensed Territory , Licensee’s license pursuant to Section 2.1 shall become fully paid-up, irrevocable, perpetual and sublicensable without restriction. | 89Terms
|
During the term of this Agreement and so long as no Payment Default has occurred and is continuing under any of the Notes, the Pledgor is authorized to collect all distributions, interest payments, and other amounts that may be, or may become, due on any of the Collateral. | 54Interests
|
Each Borrower shall keep accurate and complete records of its Accounts, including all payments and collections thereon, and shall submit to Agent sales, collection, reconciliation and other reports in form reasonably satisfactory to Agent, on such periodic basis as Agent may request. Each Borrower shall also provide to Agent, on or before the 15th day of each month, a detailed aged trial balance of all Accounts as of the end of the preceding month, specifying each Account’s Account Debtor name and address, amount, invoice date and due date, showing any discount, allowance, credit, authorized return or dispute, and including such proof of delivery, copies of invoices and invoice registers, copies of related documents, repayment histories, status reports and other information as Agent may reasonably request. If Accounts in an aggregate face amount of $750,000 or more cease to be Eligible Accounts, Borrowers shall notify Agent of such occurrence promptly (and in any event within one Business Day) after any Borrower has knowledge thereof. | 73Records
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All representations and warranties made by the Seller and the Members in this Agreement or in any agreement or certificate executed and delivered pursuant to this Agreement shall survive the execution and delivery of this Agreement and the Closing until the expiration of two (2) years from the Closing Date, other than (a) the representations and warranties made by the Seller in Section 3.10 (Environmental Matters) which shall survive for three (3) years, (b) the representations and warranties made by the Seller in Section 3.7 (Taxes and Tax Returns) and Section 3.11 (Employee Benefit Plans), which shall survive for the period of the applicable statute of limitations plus a period of sixty (60) days, and (c) the Fundamental Representations and Warranties which shall survive the Closing Date until the expiration of two (2) years from the Closing Date. Notification under Section 6.3(a) or Section 6.4 shall toll the running of any survival period in this Section 6.1 , provided that such notification adequately describes the specific representation and warranty to which the indemnification claim relates. | 98Warranties
|
In the event the obligation of the Borrower to pay interest on the principal balance of the Revolving Credit Note or on any other amounts outstanding hereunder or under the other Loan Documents is or becomes in excess of the maximum interest rate which the Borrower is permitted by law to contract or agree to pay, giving due consideration to the execution date of this Agreement, then, in that event, the rate of interest applicable thereto shall be deemed to be immediately reduced to such maximum rate and all previous payments in excess of the maximum rate shall be deemed to have been payments in reduction of principal and not of interest. | 54Interests
|
The term (“ Term ”) of this Agreement shall commence on the date hereof and shall immediately terminate upon the earliest of, without the need for any further action by any person, (i) the mutual agreement of the Parties, (ii) the Closing (iii) the termination of the Merger Agreement and (iv) the amendment of the Merger Agreement without the prior written consent of the Principal Stockholders in any manner that could be reasonably likely to (x) increase the number of shares of the Buyer Common Stock issuable to the Seller at the Closing or (y) provide the Seller or any affiliate thereof with greater rights with respect to the operations or management of Buyer following the Closing. | 89Terms
|
As of the date hereof, the authorized capital stock of the Company on the date hereof is 19,995,000,000; (b) the number of shares of capital stock issued and outstanding is 47,327,507; (c) the number of shares of capital stock issuable pursuant to the Company’s stock plans is 9,315; and (d) the number of shares of capital stock issuable and reserved for issuance pursuant to securities (other than the Securities) exercisable for, or convertible into or exchangeable for any shares of capital stock of the Company are 8,580,643,788. All of the issued and outstanding shares of the Company’s capital stock have been duly authorized and validly issued and are fully paid, nonassessable and free of pre-emptive rights. All of the issued and outstanding shares of capital stock of each Subsidiary have been duly authorized and validly issued and are fully paid, nonassessable and free of pre-emptive rights, were issued in full compliance with applicable state and federal securities law and any rights of third parties and are owned by the Company, beneficially and of record, subject to no lien, encumbrance or other adverse claim. No Person is entitled to pre-emptive or similar statutory or contractual rights with respect to any securities of the Company. Other than described herein and in the Company’s periodic reports filed with the SEC, there are no outstanding warrants, options, convertible securities or other rights, agreements or arrangements of any character under which the Company or any of its Subsidiaries is or may be obligated to issue any equity securities of any kind and except as contemplated by this Agreement, neither the Company nor any of its Subsidiaries is currently in negotiations for the issuance of any equity securities of any kind. | 16Capitalization
|
On the Closing Date, upon the terms and subject to the conditions set forth herein, the Company agrees to sell, and the Purchasers, severally and not jointly, agree to purchase, up to an aggregate of (i) $10,003,500 of Shares for each Purchaser equal to such Purchaser’s Subscription Amount for Shares as set forth on the signature page hereto executed by such Purchaser divided by the Per Share Purchase Price, and (ii) Warrants, as determined pursuant to Section 2.2(a). Each Purchaser’s Subscription Amount as set forth on the signature page hereto executed by such Purchaser shall be made available for “Delivery Versus Payment” settlement with the Company or its designee. The Company shall deliver to each Purchaser its respective Shares and a Warrant as determined pursuant to Section 2.2(a), and the Company and each 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 Section 2.3, the Closing shall occur at the offices of the Placement Agent or such other location as the parties shall mutually agree. Unless otherwise directed by the Placement Agent, settlement of the Shares shall occur via “Delivery Versus Payment” (i.e., on the Closing Date, the Company shall issue the Shares registered in the Purchasers’ names and addresses and released by the Transfer Agent directly to the account(s) at the Placement Agent identified by each Purchaser; upon receipt of such Shares, the Placement Agent shall promptly electronically deliver such Shares to the applicable Purchaser, and payment therefor shall be made by the Placement Agent (or its clearing firm) by wire transfer to the Company. | 18Closings
|
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 the Purchasers, severally and not jointly, agree to purchase, up to an aggregate of $6,000,000 in principal amount of the Debentures. Each Purchaser shall deliver to the Company, via wire transfer or a certified check, immediately available funds equal to such Purchaser’s Subscription Amount as set forth on the signature page hereto executed by such Purchaser, and the Company shall deliver to each Purchaser its respective Debenture and a Warrant, as determined pursuant to Section 2.2(a), and the Company and each 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 the offices of EGS or such other location as the parties shall mutually agree. | 18Closings
|
Lenders will reimburse and indemnify Agent for and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses (including, without limitation, attorneys’ fees and expenses), advances or disbursements of any kind or nature whatsoever which may be imposed on, incurred by, or asserted against Agent in its capacity as such in any way relating to or arising out of this Security Agreement or any action taken or omitted by Agent in its capacity as such under this Security Agreement, in proportion to each Lender’s pro rata share, but only to the extent that any of the foregoing is not reimbursed by Grantor; provided , however , that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses, advances or disbursements to the extent resulting from Agent’s gross negligence or willful misconduct as determined by a final non-appealable order by a court of competent jurisdiction. If any indemnity furnished to Agent for any purpose shall, in the opinion of Agent, be insufficient or become impaired, Agent may call for additional indemnity and cease, or not commence, to do the acts indemnified against even if so directed by such portion of the Lenders as shall be prescribed by this Security Agreement until such additional indemnity is furnished. The obligations of Lenders under this Section 24(e) shall survive the payment in full of the Obligations and the termination of this Security Agreement. | 49Indemnifications
|
The Restricted Shares shall be forfeited to the Company if the Awardee’s employment with the Company terminates for any reason prior to the third anniversary of the Award Date (the “ Lapse Date ”), or if the Awardee violates any provision of this Agreement. | 44Forfeitures
|
The execution, delivery and performance by each Loan Party of this Amendment has been duly authorized by all necessary corporate or other organizational action, and does not and will not (a) contravene the terms of any of such Person’s Organization Documents; (b) conflict with or result in any breach or contravention of, or the creation of any Lien under, or require any payment to be made under (i) any Material Contract to which such Person is a party or affecting such Person or the properties of such Person or any of its Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject; or (c) violate any Law. | 10Authorizations
|
The parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500 paid by the assignee or assignor lender; provided that, the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire. | 7Assignments
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