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This MOU will be governed by the laws of the state of Washington, exclusive of Washington’s conflict of laws principles. | 47Governing Laws
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If any provision of the Non-Employee Stock Incentive Plan or any Award is or becomes or is deemed to be invalid, illegal, or unenforceable in any jurisdiction or as to any Person or Award, or would disqualify the Non-Employee Stock Incentive Plan or any Award under any law deemed applicable by the Committee, such provision shall be construed or deemed amended to conform to the applicable laws, or if it cannot be construed or deemed amended without, in the determination of the Committee, materially altering the intent of the Non-Employee Stock Incentive Plan or the Award, such provision shall be stricken as to such jurisdiction, Person or Award and the remainder of the Non-Employee Stock Incentive Plan and any such Award shall remain in full force and effect. If such amendment or striking of such provision adversely affects the value of the Award, the Committee shall cause appropriate action to be taken to provide the affected Participant with substantially equivalent value to the Award in question. | 79Severability
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Each Participant shall be fully (100%) vested in his Account (including any subaccount) balance attributable to Deferral Elections at all times. Vesting with respect to Company Matching Contributions and other matching contributions credited as Ralcorp Amounts is described in Section 3.5. | 95Vesting
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Should one or more of the provisions of this Agreement become void or unenforceable as a matter of law, then this Agreement will be construed as if such provision were not contained herein and the remainder of this Agreement will be in full force and effect, and the Parties will use their commercially reasonable efforts to substitute for the invalid or unenforceable provision a valid and enforceable provision which conforms as nearly as possible with the original intent of the Parties. | 79Severability
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All notices, requests and demands to or upon the Secured Hedge Provider, the Administrative Agent or the Collateral Agent shall be governed by the terms of Section 11.01 of the Credit Agreement. | 65Notices
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All covenants, agreements, representations and warranties made by the Loan Parties in the Loan Documents and in the certificates or other instruments delivered in connection with or pursuant to this Agreement or any other Loan Document shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of the Loan Documents and the making of any Loans and issuance of any Letters of Credit, regardless of any investigation made by any such other party or on its behalf and notwithstanding that the Administrative Agent, the Issuing Bank or any Lender may have had notice or knowledge of any Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect as long as the principal of or any accrued interest on any Loan or any fee or any other amount payable under this Agreement or any other Loan Document is outstanding and unpaid (except for Unliquidated Obligations) or any Letter of Credit is outstanding (unless such Letter of Credit has been Cash Collateralized) and so long as the Commitments have not expired or terminated. The provisions of Sections 2.15 , 2.16 , 2.17 and 9.03 and Article VIII shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans, the expiration or termination of the Letters of Credit and the Commitments or the termination of this Agreement or any other Loan Document or any provision hereof or thereof. | 85Survival
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Effective as of the Effective Date and continuing for the Employment Period, Employee’s employment by the Company shall be subject to the terms and conditions of this Agreement. | 35Employment
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This Copyright Security Agreement shall terminate upon termination of the Security Agreement. | 88Terminations
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No failure or delay by any party hereto in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder. | 63No Waivers
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Neither the execution and delivery of the Loan Documents, nor the consummation of the transactions contemplated herein and therein, nor performance of and compliance with the terms and provisions hereof and thereof by any Credit Party will (a) violate or conflict with any provision of its organizational documents, (b) materially violate, contravene or conflict with any law, regulation (including without limitation, Regulation U or Regulation X), order, writ, judgment, injunction, decree or permit applicable to it, (c) materially violate, contravene or conflict with contractual provisions of, or cause an event of default under, any indenture, loan agreement, mortgage, deed of trust, contract or other agreement or instrument to which it is a party or by which it may be bound or (d) result in or require the creation of any Lien upon or with respect to its properties. | 61No Conflicts
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In the event any Party brings an Action to enforce or determine any rights under this Agreement or the Transactions, the Parties agree that the court referred to in Section 11.1 shall, only upon a clear demonstration that one Party is the non-prevailing party in such Action, order the non-prevailing Party to pay the reasonable out-of-pocket attorneys’ fees and expenses incurred by the prevailing Party and promptly after the entry of a final and nonappealable order of such court to such effect, the non-prevailing Party shall pay to the prevailing Party all such costs and expenses; provided that , in any such Action, if a Party seeking monetary recovery is awarded some, but less than the full amount, of the recovery sought, the Party receiving such award shall be deemed the prevailing Party if such award represents 50% or more of the amount originally sought, and the other Party shall be deemed the prevailing Party if the amount awarded represents less than 50% of the amount originally sought; and provided , further , that in either such case of partial recovery, the amount of the prevailing Party’s attorneys’ fees and expenses reimbursed pursuant to this Section 11.3 shall be limited to a percentage of such fees and expenses equal to (i) the percentage recovered of the amount originally sought, if the prevailing Party was the recipient of the award, or (ii) the percentage of the amount originally sought that was not recovered, if the prevailing Party was the other Party. | 41Expenses
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The Company shall (a) by 9:00 a.m. (New York City time) on the date hereof, issue a press release disclosing the material terms of the transactions contemplated hereby, and (b) file a Current Report on Form 8-K, including the Transaction Documents as exhibits thereto, with the Commission within the time required by the Exchange Act. From and after the issuance of such press release, the Company represents to the Purchasers that it shall have publicly disclosed all material, non-public information delivered to any of the Purchasers by the Company or any of its Subsidiaries, or any of their respective officers, directors, employees or agents in connection with the transactions contemplated by the Transaction Documents. In addition, effective upon the issuance of such press release, the Company acknowledges and agrees that any and all confidentiality or similar obligations under any agreement, whether written or oral, between the Company, any of its Subsidiaries or any of their respective officers, directors, agents, employees or Affiliates on the one hand, and any of the Purchasers or any of their Affiliates on the other hand, shall terminate. The Company and each Purchaser shall consult with each other in issuing any other press releases with respect to the transactions contemplated hereby, and neither the Company nor any Purchaser shall issue any such press release nor otherwise make any such public statement without the prior consent of the Company, with respect to any press release of any Purchaser, or without the prior consent of each Purchaser, with respect to any press release of the Company, which consent shall not unreasonably be withheld or delayed, except if such disclosure is required by law, in which case the disclosing party shall promptly provide the other party with prior notice of such public statement or communication. Notwithstanding the foregoing, the Company shall not publicly disclose the name of any Purchaser, or include the name of any Purchaser in any filing with the Commission or any regulatory agency or Trading Market, without the prior written consent of such Purchaser, except (a) as required by federal securities law in connection with the filing of final Transaction Documents with the Commission and (b) to the extent such disclosure is required by law or Trading Market regulations, in which case the Company shall provide the Purchasers with prior notice of such disclosure permitted under this clause (b). | 71Publicity
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In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, the Investor and the Company will be entitled to specific performance under this Agreement against any other parties Signatory hereto. 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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Notwithstanding any provision to the contrary in this Agreement, the Company’s obligation to pay or provide the Executive with the payments and benefits under Sections 4.4.2 and 4.4.3 (other than the Amounts and Benefits), and any distributions with respect to the restricted stock and stock options under Sections 4.4.2 and 4.4.3, shall be conditioned on the Executive’s execution and failure to revoke a waiver and general release in a form generally consistent with Exhibit A hereto (subject to such changes as may be necessary at the time of execution in order to make such release enforceable) (the “ Release ”). The Company shall provide the Release to the Executive within seven days following the applicable Date of Termination. In order to receive the payments and benefits under Sections 4.4.2 and 4.4.3 (other than the Amounts and Benefits) and the distributions with respect to the restricted stock and stock options under Sections 4.4.2 and 4.4.3, the Executive will be required to execute and deliver the Release within 21 days after the date it is provided to him and not to revoke it within seven days following such execution and delivery. Notwithstanding anything to the contrary contained herein, (i) all payments delayed pursuant to this Section, except to the extent delayed pursuant to Section 8.10.2, shall be paid to the Executive in a lump sum on the first Company payroll date on or following the 60th day after the Date of Termination, and any remaining payments due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein, with each such payment deemed to be a separate and distinct payment for the purposes of Code Section 409A (as defined below) and (ii) all distributions with respect to the restricted stock and stock options delayed pursuant to this Section, except to the extent delayed pursuant to Section 8.10.2, shall be distributed to the Executive on the 60th day after the Date of Termination. | 74Releases
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To its actual knowledge after due inquiry, NuLeaf Cultivation has complied with any and all laws and regulations concerning its organization, existence and the transaction of its business. Subject to Section 3.4, NuLeaf Cultivation has the right and power to own, construct and operate the MME Cultivation Facility and to perform any act necessary in furtherance of the foregoing. | 9Authority
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This Bill of Sale shall be governed by and construed and enforced in accordance with the laws of the Commonwealth of Pennsylvania applicable to contracts made in that state, without giving effect to the conflict of laws principles thereof. | 47Governing Laws
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The Company has filed all reports required to be filed by it under the Securities Act and the Exchange Act since March 27, 2014, including pursuant to Sections 13(a) or 15(d) of the Exchange Act, or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. Such reports required to be filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) of the Exchange Act, together with any materials filed or furnished by the Company under the Securities Act and the Exchange Act, whether or not any such reports were required being collectively referred to herein as the “ SEC Reports ” and, together with this Agreement and the Disclosure Letter, the “ Disclosure Materials ”. As of their respective dates, the SEC Reports filed by the Company complied in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable, and the rules and regulations of the SEC promulgated thereunder, and none of the SEC Reports, when filed by the Company, 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 the light of the circumstances under which they were made, not misleading. The financial statements of the Company included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations of the SEC with respect thereto as in effect at the time of filing. Such financial statements have been prepared in accordance with United States generally accepted accounting principles applied on a consistent basis during the periods involved (“ GAAP ”), except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP, and fairly present in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries taken as a whole as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments. All material agreements to which the Company or any Subsidiary is a party or to which the property or assets of the Company or any Subsidiary are subject that are required to be filed with the SEC or identified on the SEC Reports are included as part of or identified in the SEC Reports. The Company is eligible to use Form S-3 to register the resale of the Registrable Securities. The Company has not received any comments from the SEC or the staff of the SEC Division of Corporation Finance on the Company’s SEC Reports (or any Company filings with the SEC during the years ended December 31, 2014 and 2015) that remain unresolved. | 43Financial Statements
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The Borrower agrees to pay to KeyBank, the Agent and Lead Arrangers for their own account certain fees for services rendered or to be rendered in connection with the Loans as provided pursuant to that certain fee letter dated as of November 14, 2016, among the Borrower, KeyBank and the Lead Arrangers (the “ Agreement Regarding Fees ”). All such fees shall be fully earned when paid and nonrefundable under any circumstances. | 42Fees
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Except for transactions contemplated by the Transaction Documents or as otherwise approved by the Board (including a majority of the independent directors then on the Board, if any), the Company shall not, and shall cause its Subsidiaries not to enter into any transaction with any director, officer, employee or holder of more than five percent of the outstanding capital stock of any class or series of capital stock of the Company or any Subsidiary, member of the family of any such person, or any corporation, partnership, trust or other entity in which any such person, or member of the family of any such person, is a director, officer, trustee, partner or holder of more than five percent of the outstanding capital stock thereof. | 91Transactions With Affiliates
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As of the Effective Date, there is no Proceeding or claim pending or, to the Knowledge of Parents, threatened in writing, to which either Parent or either Merger Sub is a party, in any such case at law or in equity before any Governmental Authority or arbitral body, against or affecting either Parent or either Merger Sub which would have a Parent Material Adverse Effect. As of the Effective Date, none of Parents or Merger Subs is subject to any judgment, decree, injunction, rule or order of any Governmental Authority or any arbitrator that prohibits the consummation of the Transactions or would, individually or in the aggregate, have a Parent Material Adverse Effect. | 58Litigations
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Without limitation on the terms of the Loan Documents, Borrower agrees to reimburse Lender for all its cost and expense (including reasonable attorney’ fees and expenses) incurred in connection with this Amendment. Lender, at its discretion, is authorized (i) to charge said fees, costs and expenses to Borrower’s loan account or any of Borrower’s deposit accounts or (ii) to directly invoice Borrower for such amounts. | 41Expenses
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Executive shall receive a base salary during the Term of $550,000 per annum (such base salary, as it may be increased from time to time, the “ Base Salary ”), which amount may be increased (but not decreased) at the discretion of the Committee. The Base Salary shall be paid to Executive by the Company in accordance with the Company’s regular payroll practice as in effect from time to time. | 11Base Salary
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All representations, warranties, covenants, and agreements herein contained shall inure to the benefit of and be obligatory upon all successors of the respective parties hereto, whether through merger, acquisition or purchase of assets substantially equivalent to an acquisition, and, subject to Sections 4.01(b) , 9.01 and 9.02 , shall survive the sale of any Purchased Loans hereunder and any termination of this Agreement. | 84Successors
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(a) Interest and fees payable pursuant hereto shall be calculated on the basis of a 360-day year for the actual days elapsed, except that, with respect to ABR Loans, the interest thereon shall be calculated on the basis of a 365- (or 366-, as the case may be) day year for the actual days elapsed. The Administrative Agent shall as soon as practicable notify the Borrower and the relevant Lenders of each determination of a Eurodollar Rate. Any change in the interest rate on a Loan resulting from a change in the ABR or the Eurocurrency Reserve Requirements shall become effective as of the opening of business on the day on which such change becomes effective. The Administrative Agent shall as soon as practicable notify the Borrower and the relevant Lenders of the effective date and the amount of each such change in interest rate. | 42Fees
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This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware, as applied to contracts between Delaware residents entered into and to be performed entirely within such state without giving effect to the principles of conflicts of choice of laws of such state or any other jurisdiction that would require the application of the laws of another jurisdiction. | 47Governing Laws
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The representations and warranties made by the Company contained in this Agreement, and made by or on behalf of any of the Investors pursuant to this Agreement, shall survive for a period of 18 months following the applicable Closing Date, regardless of any investigation made at any time by or on behalf of the Investors or the Company. The covenants made in this Agreement or any Related Agreement shall survive the Closing and remain operative and in full force and effect regardless of acceptance of any of the Preferred Securities and payment therefor and repayment, conversion or repurchase thereof. | 85Survival
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If either Party commits a material breach or violation of any material provision of this Agreement, and such breach or violation is not cured within sixty (60) days after receiving written notice thereof from the other Party, the non-breaching Party may, at its option, terminate this Agreement by written notice to the breaching Party. A breach of this Agreement by either Party that remains uncured for more than sixty (60) days after receiving written notice thereof from the other Party shall amount to a breach of the License Agreement or any other Ancillary Agreement. If the allegedly breaching Party disputes the existence of such breach (other than a dispute regarding whether or not a service is a Service required to be made available by Bayer to Spectrum during the ninety (90) days after the Closing Date), this Agreement may not be terminated by the non-breaching Party (except with respect to the Service or Additional Service to which the dispute relates) until the existence of such breach is resolved in accordance with Sections 3.25, 3.26 and or 3.27, as applicable; provided, however, if Spectrum’s breach is the failure to pay when due any amount hereunder after a ten business day notice and cure period, Bayer may immediately stop providing the Services or Additional Services while the breach continues, and if Bayer’s breach is the failure to provide a Service or an Additional Service after a ten business day notice and cure period, Spectrum may immediately stop paying for that Service or Additional Service, as applicable, while the breach continues. Notwithstanding the foregoing, this Agreement shall automatically terminate upon a termination of the License Agreement. In the event of the expiration or termination of this Agreement pursuant to this Section 3.10, this Agreement will have no further force and effect and all other rights and Liabilities of the parties hereunder will terminate without any Liability of any party to any other party, except for Liabilities arising in respect of breaches under this Agreement by any party on or prior to the termination date. | 88Terminations
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In signing below, Employee expressly acknowledges the enforceability, and continued effectiveness of Sections 8 , 9 and 11 of the Employment Agreement and promises to abide by those terms of the Employment Agreement. | 45Further Assurances
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The Plan, the Notice of Grant, and the Stock Option Agreement are incorporated herein by reference. This Agreement, the Plan, the Notice of Grant, the Stock Option Agreement, and the Investment Representation Statement constitute the entire agreement of the parties and supersede in their entirety all prior undertakings and agreements of the Corporation and the Optionee with respect to the subject matter hereof. | 38Entire Agreements
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This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or in electronic (i.e., “ pdf ” or “ tif ”) format shall be effective as delivery of a manually executed counterpart of this Agreement. | 26Counterparts
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HP or other payor may withhold from a benefit payment under the Plan or a Participant's wages any federal, state, or local taxes required by law to be withheld with respect to a payment or accrual under the Plan, and shall report such payments and other Plan-related information to the appropriate governmental agencies as required under applicable laws. | 87Taxes
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If any provision of this Agreement or the application of any provision hereof to any person or circumstances is held invalid, unenforceable or otherwise illegal, the remainder of this Agreement and the application of such provision to any other person or circumstances shall not be affected, and the provisions so held to be invalid, unenforceable or otherwise illegal shall be reformed to the extent (and only to the extent) necessary to make it enforceable, valid and legal.. | 79Severability
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At the expense of the Company, the Manager shall maintain or cause to be maintained the books, records and accounts of all operations and expenditures (collectively, the “ Records ”) of the Company. | 73Records
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By acceptance of the benefits of the Security Documents, each Secured Party shall be deemed irrevocably (i) to consent to the appointment of the Collateral Agent as its agent hereunder and under the Security Documents, (ii) to confirm that the Collateral Agent shall have the authority to act as the exclusive agent of such Secured Party for enforcement of any provisions of this Agreement and the Security Documents against any Loan Party or the exercise of remedies hereunder or thereunder, (iii) to agree that such Secured Party shall not take any action to enforce any provisions of this Agreement or any Security Document against any Loan Party or to exercise any remedy hereunder or thereunder and (iv) to agree to be bound by the terms of this Agreement, the other Security Documents and any Intercreditor Agreement. | 22Consents
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Each Group Member has filed or caused to be filed all material Tax returns that are required to be filed within the time periods required by applicable law and has paid all material Taxes whether or not shown on such Tax return (other than any Taxes the amounts or validity of which are currently being contested in good faith by appropriate proceedings and with respect to which reserves in conformity with GAAP have been provided on the books of the applicable Group Member), no Tax Lien (other than one permitted pursuant to Section 8.3) has been filed, and no claim (other than those being contested as aforesaid) is being asserted, with respect to any such Tax. Cedar Fair LP has been treated since its inception as an electing 1987 partnership within the meaning of Section 7704(g)(3) of the Code and not as an association taxable as a corporation under subchapter C of the Code. Each Group Member has withheld or collected, and remitted to the appropriate Governmental Authority when due, all taxes it is required to withhold or collect and remit within the time periods required by applicable law, except where the failure to do so could not reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect. There are no proposed Tax assessments, deficiencies, claims or audits against any Group Member that could be reasonably expected to, individually or in the aggregate, result in a Material Adverse Effect. | 87Taxes
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Notwithstanding the provisions of Section 2 of this Agreement, if any Shares which have not previously vested at the time of a Change in Control are not assumed or otherwise continued in effect by the surviving company or are not replaced by the surviving company with an economically equivalent award in connection with the Change in Control, such Shares shall vest in full as of such Change in Control. | 17Change In Control
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This Agreement may be executed in two or more counterparts any one of which need not contain the signature of more than one party, but all such counterparts together will constitute one and the same Agreement. | 26Counterparts
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None of Buyer or any of its Affiliates has any liability or obligation to pay fees or commissions to any broker, finder or agent with respect to the transactions contemplated by this Agreement for which Seller or its Affiliates would reasonably be expected to become liable or obliged. | 15Brokers
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The parties acknowledge that this Agreement is the result of arm’s-length negotiations between sophisticated parties each afforded representation by legal counsel. Each and every provision of this Agreement shall be construed as though both parties participated equally in the drafting of the same, and any rule of construction that a document shall be construed against the drafting party shall not be applicable to this Agreement. | 23Construction
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Seller is a limited liability company, duly formed and validly existing and in good standing under the laws of the State of California, and has full power and lawful authority under Seller’s organizational documents to enter into and carry out the terms and provisions of this Agreement and to execute and deliver all documents which are contemplated by this Agreement. All actions necessary to confer such power and authority upon the persons executing this Agreement (and all documents which are contemplated by this Agreement to be executed on behalf of Seller) have been taken. Seller’s execution, delivery and performance of this Agreement will not result in any violation of, or default under, or require any notice or consent under, any of Seller’s organizational documents, any other agreement to which Seller is a party or any law, judgment or order applicable to Seller. | 9Authority
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Guarantor shall (i) preserve and maintain its legal existence and all of its material rights, privileges, licenses and franchises necessary for the operation of its business; (ii) comply with any applicable Requirement of Law, rules, regulations and orders, whether now in effect or hereafter enacted or promulgated by any applicable Governmental Authority (including, without limitation, all Environmental Laws); (iii) maintain all licenses, permits or other approvals necessary for Guarantor to conduct its business and to perform its obligations under this Guaranty and the other Program Documents to which it is a party, and shall conduct its business in accordance with any applicable Requirement of Law; and (iv) keep adequate records and books of account, in which complete entries will be made in accordance with GAAP consistently applied. | 19Compliance With Laws
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Except as preempted by ERISA, the provisions of this Plan shall be construed and interpreted according to the internal laws of the Commonwealth of Massachusetts without regard to its conflicts of laws principles. | 47Governing Laws
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In the event of the termination of this Agreement pursuant to this Article IX , the Party terminating this Agreement shall give prompt written notice thereof to the other Parties, and the transactions contemplated hereby as they relate to MPT shall be abandoned, without further action by any Party. Each filing, application and other submission relating to the transactions contemplated hereby shall, to the extent practicable, be withdrawn from the person to whom it was made. Notwithstanding any statement contained in this Agreement to the contrary, termination of this Agreement shall not relieve any Party from liability for any breach or violation of this Agreement that arose prior to such termination. | 65Notices
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Notwithstanding any other provision of the Notice or these Terms and Conditions to the contrary, if before the Third Vesting Date you have a Separation from Service due to your having incurred a Disability, then all remaining Forfeiture Restrictions then applicable to the RSUs shall immediately lapse on, and payment in respect of vested RSUs shall be made as soon as practicable (but no later than 60 days) following, the date of your Separation from Service; provided , that, if you are a Specified Employee, payment in respect of vested RSUs shall instead be made on the date that is 6 months and 1 day following your Separation from Service; provided, however, that if you die before the expiration of such 6-month delay period (if applicable) then payment shall be made as soon as practicable (but no later than 60 days) following the date of your death. | 30Disability
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This Agreement and any matter relating to the Performance Stock Units will be construed, administered and governed in all respects under and by the applicable laws of the State of Minnesota, excluding any conflicts or choice of law rule or principle that might otherwise refer construction or interpretation of this Agreement, the Plan, the award of Performance Stock Units or the Stock to the substantive law of another jurisdiction. | 47Governing Laws
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On and subject to the terms and conditions of this Agreement, at the Closing (as defined below), the Buyer shall purchase, as applicable, from: (i) the Seller and the Seller shall sell, transfer and assign, convey and deliver to the Buyer, the Seller Membership Interests and/or (ii) the Company and the Company shall sell, transfer and assign, convey and deliver to the Buyer, the Building Owner Membership Interests, free and clear of all liens, pledges, claims, security interests, encumbrances, or charges (collectively the "Interest Liens"). Buyer shall have no right or obligation to purchase the Seller Membership Interests or the Building Ownership Membership Interests unless Buyer has purchased the DT 87.5% interest or building owner membership interests, as applicable, pursuant to the DT Purchase Agreement. | 77Sales
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Counterparty shall indemnify and hold harmless MUFG and any of its affiliates, directors, officers, employees, partners, controlling entities or agents (each, an “ Indemnified Party ”) from and against any and all claims, losses, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) (“ Losses ”) arising out of or attributable to (i) Counterparty’s actions taken or not taken in connection with this Confirmation or the Transaction and (ii) the engagement of MUFG pursuant to, and the performance by MUFG of the services contemplated by this Confirmation, except to the extent that such Loss is found in a final non-appealable judgment by a court of competent jurisdiction to have resulted solely from the gross negligence or bad faith of any Indemnified Party. This indemnity agreement shall be in addition to any liability that Counterparty otherwise may have. The provisions of this paragraph shall survive the termination of this Confirmation. | 50Indemnity
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If, as a result of Executive’s incapacity due to physical or mental illness (“ Disability ”), Executive shall be unable to substantially perform Executive’s duties with the Company for a period of four (4) consecutive months and, within thirty (30) days after written notice of a pending termination for Disability is provided to Executive by the Company (in accordance with Section 4A hereof), Executive shall not have been able to substantially perform Executive’s duties, Executive’s employment under this Agreement may be terminated by the Company for Disability. During any period prior to such termination during which Executive is absent from the full-time performance of Executive’s duties with the Company due to Disability, the Company shall continue to pay Executive’s Base Salary at the rate in effect at the commencement of such period of Disability, offset by any amounts payable to Executive under any disability insurance plan or policy provided by the Company. Upon termination of Executive’s employment due to Disability, the Company shall pay Executive within thirty (30) days of such termination in a lump sum in cash (i) Executive’s Base Salary through the end of the month in which termination occurs, offset by any amounts payable to Executive under any disability insurance plan or policy provided by the Company; and (ii) any Accrued Obligations. | 30Disability
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If, at the time of the receipt of a notice of the commencement of a Proceeding pursuant to Section 8(a) above, the Company has director and officer liability insurance in effect, the Company shall give prompt notice of the commencement of such Proceeding to the issuers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all reasonable action to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such insurance policies. | 51Insurances
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All communications and notices hereunder shall (except as otherwise expressly permitted herein) be in writing and given as provided in Section 9.01 of the Credit Agreement. All communications and notices hereunder to any Subsidiary Loan Party shall be given to it in care of the Company, with such notice to be given as provided in Section 9.01 of the Credit Agreement. | 65Notices
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The Employee’s employment by the Employer pursuant to this Agreement is for the period commencing on the Commencement Date and ending thirty-six (36) months thereafter or on such earlier date as is determined in accordance with Sections 10 and 12 of this Agreement or such later date as provided herein. | 89Terms
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As of the Closing Date, there are no actions, suits or proceedings by or before any arbitrator or Governmental Authority pending against or, to the knowledge of a Senior Officer of the Borrower, threatened against the Borrower or any of its Subsidiaries (i) which could reasonably be expected to result in a Material Adverse Effect or (ii) which purports to affect the legality, validity or enforceability of this Agreement or the Transactions. | 58Litigations
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This Agreement becomes effective upon the commencement of your employment at the job site within the United States of America. | 33Effective Dates
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California law governs this Agreement without regard to principles of conflicts of law. Debtors and Flex each submit to the exclusive jurisdiction of the State and Federal courts in Los Angeles County, California; provided, however, that nothing in this Agreement shall be deemed to operate to preclude Flex from bringing suit or taking other legal action in any other jurisdiction to realize on the Collateral or any other security for the Obligations, or to enforce a judgment or other court order in favor of Flex. Debtor expressly submits and consents in advance to such jurisdiction in any action or suit commenced in any such court, and Debtor hereby waives any objection that it may have based upon lack of personal jurisdiction, improper venue, or forum non conveniens and hereby consents to the granting of such legal or equitable relief as is deemed appropriate by such court. Debtor hereby waives personal service of the summons, complaints, and other process issued in such action or suit and agrees that service of such summons, complaints, and other process may be made by registered or certified mail addressed to Debtor at the address set forth in, or subsequently provided by Debtors in accordance with the Flex Services Agreements and that service so made shall be deemed completed upon the earlier to occur of Debtors’ actual receipt thereof or three (3) days after deposit in the U.S. mails, proper postage prepaid. | 47Governing Laws
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Notice of any special meeting of the Board of Trustees shall be delivered personally or by telephone, electronic transmission, facsimile transmission, United States mail or courier to each Trustee at his or her business or residence address. Notice by personal delivery, telephone, electronic transmission or facsimile transmission shall be given at least 24 hours prior to the meeting. Notice by United States mail shall be given at least three days prior to the meeting. Notice by courier shall be given at least two days prior to the meeting. Telephone notice shall be deemed to be given when the Trustee or his or her agent is personally given such notice in a telephone call to which the Trustee or his or her agent is a party. Electronic transmission notice shall be deemed to be given upon transmission of the message to any address or number given to the Trust by the Trustee at which the Trustee receives electronic transmissions. Facsimile transmission notice shall be deemed to be given upon completion of the transmission of the message to the number given to the Trust by the Trustee and receipt of a completed answer-back indicating receipt. Notice by United States mail shall be deemed to be given when deposited in the United States mail properly addressed, with postage thereon prepaid. Notice by courier shall be deemed to be given when deposited with or delivered to a courier properly addressed. Neither the business to be transacted at, nor the purpose of, any annual, regular or special meeting of the Board of Trustees need be stated in the notice, unless specifically required by statute or these Bylaws. | 65Notices
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The Lenders agree to indemnify the Agent (to the extent not reimbursed by the Borrower and without limiting its obligation to do so), ratably according to the respective principal amounts of the Advances then owed to each of them (or if no Advances are at the time outstanding, ratably according to the respective amounts of their Commitments), from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever that may be imposed on, incurred by, or asserted against the Agent in any way relating to or arising out of this Agreement or any action taken or omitted by the Agent under this Agreement (collectively, the " Indemnified Costs "), provided that no Lender shall be liable for any portion of the Indemnified Costs resulting from the Agent's gross negligence or willful misconduct. Without limitation of the foregoing, each Lender agrees to reimburse the Agent promptly upon demand for its ratable share of any out-of-pocket expenses (including reasonable counsel fees) incurred by the Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, to the extent that the Agent is not reimbursed for such expenses by the Borrower. In the case of any investigation, litigation or proceeding giving rise to any Indemnified Costs, this Section 7.08 applies whether any such investigation, litigation or proceeding is brought by the Agent, any Lender or a third party. | 49Indemnifications
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Headings contained in this Note are for reference purposes only and shall not affect in any way the meaning or interpretation of this Note. | 48Headings
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This Assignment constitutes the entire and final agreement between the parties with respect to the subject matter hereof and may not be changed, terminated or otherwise varied except by writing duly executed by the parties. | 38Entire Agreements
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Notwithstanding any provision herein to the contrary, prior to the payment of any Severance Payments and the reimbursement of health benefit premiums during the Change of Control Severance Benefit Period, Employee shall have executed, and not revoked, a Release of Claims. Any payments subject to a Release of Claims may be delayed by the Company until the effective date and expiration of any revocation period of a Release of Claims. | 74Releases
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U.S. Stem Cell and the Key Persons agree and declare that it is impossible to measure in monetary terms the damages that may accrue to U.S. Stem Cell and the Key Persons by reason of the breach of the obligations of this Agreement and that any breach of this Agreement shall cause the Company irreparable injury. Therefore, if the Company, or its respective successor-in-interest, shall institute an action or proceeding to enforce the provisions of this Agreement the U.S. Stem Cell and the Key Persons shall and hereby do, in advance, waive the claim or defense that there is an adequate remedy at law, and the Company shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages at law or posting a bond. If a court of competent jurisdiction requires the posting of a bond, the parties agree that a bond in the amount of $1,000 shall be adequate. | 37Enforcements
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Any Party may deliver executed signature pages to this Amendment by facsimile transmission to the other Parties, which facsimile copy shall be deemed to be an original executed signature page. This Amendment may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute a single instrument. | 26Counterparts
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In accordance with the directions of the Company’s Board of Directors, the Company shall use the proceeds from the sale of the Preferred Shares in accordance with Schedule 1.2 annexed hereto, other general corporate purposes. | 92Use Of Proceeds
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All notices, demands and other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to have been given when personally delivered to the Company or received by electronic mail as provided below. Such notices, demands and other communications shall be addressed to the Executive at his last known address on the books of the Company or, in the case of the Company, to it at its principal place of business, attention General Counsel, [email protected], or to such other address as either party may specify by notice to the other actually received. | 65Notices
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This Plan shall be regulated, construed and administered under the laws of the State of North Carolina, except where preempted by federal law. | 47Governing Laws
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The capitalization of the Company is as set forth on Schedule 3.1(g) , which Schedule 3.1(g) shall also include the number of shares of Common Stock owned beneficially, and of record, by Affiliates of the Company as of the date hereof and shall include a schedule of shares of Common Stock available for reservation and issuance upon conversion and exercise of the Securities prior to Shareholder Approval. Except as disclosed on Schedule 3.1(g ), the Company has not issued any capital stock since its most recently filed periodic or current report under the Exchange Act, other than pursuant to the exercise of employee stock options under the Company’s stock option plans, the issuance of shares of Common Stock to employees pursuant to the Company’s employee stock purchase plans and pursuant to the conversion and/or exercise of Common Stock Equivalents outstanding as of the date of the most recently filed periodic report under the Exchange Act. No Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated by the Transaction Documents. Except as a result of the purchase and sale of the Securities, and as set forth on Schedule 3.1(g ), there are no outstanding options, warrants, scrip rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights or obligations convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire any shares of Common Stock, or contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to issue additional shares of Common Stock or Common Stock Equivalents. The issuance and sale of the Securities will not obligate the Company to issue shares of Common Stock or other securities to any Person (other than the Purchasers) and will not result in a right of any holder of Company securities to adjust the exercise, conversion, exchange or reset price under any of such securities. All of the outstanding shares of capital stock of the Company are duly authorized, validly issued, fully paid and nonassessable, have been issued in compliance with all federal and state securities laws (or the applicable statute of limitations has expired), and none of such outstanding shares was issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities. No further approval or authorization of any stockholder or the Board of Directors or others is required for the issuance and sale of the Securities. There are no stockholders agreements, voting agreements or other similar agreements with respect to the Company’s capital stock to which the Company is a party or, to the knowledge of the Company, between or among any of the Company’s stockholders. | 16Capitalization
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In view of the foregoing, the Executive acknowledges and agrees that it is reasonable and necessary for the protection of the good will, business, trade secrets, confidential information and Proprietary Information of the Company that he makes the covenants in this Section 8 and that the Company will suffer irreparable injury if the Executive engages in the conduct prohibited by Section 8 (a), (b) or (c) of this Agreement. The Executive agrees that upon a breach, threatened breach or violation by him of any of the foregoing provisions of this Section 8, the Company, in addition to all other remedies it may have including an action at law for damages, shall be entitled as a matter of right to injunctive relief, specific performance or any other form of equitable relief in any court of competent jurisdiction without being required to post bond or other security and without having to prove the inadequacy of the available remedies at law, to enjoin and restrain the Executive and each and every other person, partnership, association, corporation or organization acting in concert with the Executive, from the continuance of any action constituting such breach. The Company shall also be entitled to recover from the Executive all of its reasonable costs incurred in the enforcement of this Section 8 including its reasonable legal fees. The Executive acknowledges that the terms of Section 8(a), (b) and (c) are reasonable and enforceable and that , should there be a violation or attempted or threatened violation by the Executive of any of the provisions contained in these subsections, the Company shall be entitled to relief by way of injunction, specific performance or other form of equitable relief. In the event that any of the foregoing covenants in Sections 8 (a), (b) or (c) shall be deemed by any court of competent jurisdiction, in any proceedings in which the Company shall be a party, to be unenforceable because of its duration, scope, or area, it shall be deemed to be and shall be amended to conform to the scope, period of time and geographical area which would permit it to be enforced. | 37Enforcements
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SNH TRS may assign this Agreement to any Affiliate (but only as such term is defined in Section 1.04(i) or (iii)) of SNH TRS without Manager’s consent. Manager shall not assign or transfer its interest in this Agreement without the prior written consent of SNH TRS which may be withheld in SNH TRS’s sole and absolute discretion. If SNH TRS consents to an assignment of this Agreement by Manager, no further assignment shall be made without the express consent in writing of SNH TRS. | 7Assignments
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None of the Seller nor any of the Acquired Companies is a party to or subject of any, and there are no pending or, to the Knowledge of Seller, threatened, legal, administrative, arbitral or other proceedings, claims, actions or governmental or regulatory investigations of any nature against Seller or the Acquired Companies. There is no injunction, order, judgment, regulatory restrictions (other than those of general application that apply to similarly situated banks) or decrees imposed upon Seller or the Acquired Companies, or the assets of the Acquired Companies. | 58Litigations
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You agree not to disclose, distribute, publish, communicate or in any way cause to be disclosed, distributed, published, or communicated in any way or at any time, Confidential Information (as defined herein), or any part of Confidential Information, to any person, firm, corporation, association, or any other operation or entity except on behalf of the Company in performance of your duties and responsibilities for the Company, and then only in a fashion consistent with protecting the Confidential Information from unauthorized use or disclosure, except as otherwise approved by the Company. You further agree not to use or permit the reproduction of any Confidential Information except on behalf of the Company in your capacity as an employee of the Company. You agree to take all reasonable care to avoid the unauthorized disclosure or use of any Confidential Information. You assume responsibility for and agree to indemnify and hold harmless the Company from and against any disclosure or use of the Confidential Information in violation of this Agreement. | 20Confidentiality
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The Lenders shall have received the financial statements and other financial information described in Section 3.1. | 43Financial Statements
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Executive recognizes that during the course of her employment, she will be exposed to information or ideas of a confidential or proprietary nature that pertain to Company’s business, financial, legal, marketing, administrative, personnel, technical or other functions or which constitute trade secrets (including, without limitation, specifications, designs, plans, drawings, software, data, prototypes, the identity of sources and markets, marketing information and strategies, business and financial plans and strategies, methods of doing business, data processing and technical systems, programs and practices, customers and users and their needs, sales history, financial health or material non-public information as defined under federal securities law) (collectively “Confidential Information”). Confidential Information also includes such information of third parties that has been provided to Company in confidence. All such information is deemed “confidential” or “proprietary” whether or not it is so marked. Information will not be considered Confidential Information to the extent that it is or becomes generally available to the public other than through any breach of this Agreement by or at the discretion of Executive. Nothing in this Section will prohibit the use or disclosure by Executive of knowledge that is in general use in the industry or general business knowledge, was known to her prior to her service to the Company or which enters the public domain other than through any breach of this Agreement by or at the discretion of Executive. Executive may also disclose such information if required by court order or applicable law provided that she (a) uses her reasonable best efforts to give the Company written notice as far in advance as is practicable to allow the Company to seek a protective order or other appropriate remedy (except to the extent that her compliance with the foregoing would cause her to violate a court order or other legal requirement), (b) discloses only such information as Executive believes in good faith to be required by law, and (c) uses her reasonable best efforts (at the Company’s expense) to obtain confidential treatment for any Confidential Information so disclosed. During Executive’s employment and for so long as the Confidential Information remains confidential or proprietary thereafter, she shall hold Confidential Information in confidence, shall use it only in connection with the performance of her duties on behalf of the Company, shall restrict its disclosure to those directors, employees or independent contractors of the Company with a need to know such Confidential Information, and shall not disclose, copy or use Confidential Information for the benefit of anyone other than the Company without the Company’s prior written consent. However, nothing in this Agreement shall prohibit the Executive from reporting possible violations of law to any governmental agency or entity in accordance with applicable whistleblower protection provisions including, without limitation, the rules promulgated under Section 21F of the Exchange Act or Section 806 of the Sarbanes-Oxley Act of 2002, or require the Executive to notify the Company (or obtain its prior approval) of any such reporting. Executive shall, upon Company’s request or her termination of employment, return to the Company and/or certify in a form satisfactory to the Company the destruction of any and all written documents containing Confidential Information in her possession, custody or control. For the avoidance of doubt, Executive shall not retain any copy in any form of any Confidential Information following such request or termination. | 20Confidentiality
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(a) Sell or transfer any property or assets to, or purchase or acquire any property or assets from, or otherwise engage in any other transaction with, any of its Affiliates (other than the Parent, and the Subsidiaries or any person that becomes a Subsidiary as a result of such transaction) in a transaction (or series of related transactions) involving aggregate consideration in excess of $20,000,000 unless such transaction is (i) otherwise permitted (or required) under this Agreement or (ii) upon terms that are substantially no less favorable to the Parent or such Subsidiary, as applicable, than would be obtained in a comparable arm’s-length transaction with a person that is not an Affiliate, as determined by the Board of Directors of the Parent or such Subsidiary in good faith. | 91Transactions With Affiliates
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This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument and either of the parties hereto may execute this Agreement by signing any such counterpart. | 26Counterparts
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All notices to Mortgagor and to Mortgagee shall be deemed to be duly given if and when mailed, with postage prepaid, to the respective addresses of Mortgagor and Mortgagee appearing on the first page hereof, or if and when delivered personally. | 65Notices
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This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts without regard to conflict of law principles. | 47Governing Laws
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For purposes of this Section 3.01 , the term “Lender” includes any L/C Issuer and the term "applicable law" includes FATCA. | 89Terms
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LENDER AND CREDIT PARTIES, AFTER CONSULTING OR HAVING HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE, IRREVOCABLY, THE RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY LEGAL PROCEEDING BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT, THE REVOLVING NOTE, THE FEE NOTE, ANY LOAN DOCUMENT OR ANY OF THE OBLIGATIONS, THE COLLATERAL, OR ANY OTHER AGREEMENT EXECUTED OR CONTEMPLATED TO BE EXECUTED IN CONJUNCTION WITH THIS AGREEMENT, OR ANY COURSE OF CONDUCT OR COURSE OF DEALING IN WHICH LENDER AND CREDIT PARTIES ARE ADVERSE PARTIES. THIS PROVISION IS A MATERIAL INDUCEMENT FOR LENDER GRANTING ANY FINANCIAL ACCOMMODATION TO BORROWER. | 96Waiver Of Jury Trials
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This Agreement may be executed in any number of counterparts, each of which shall be deemed an original but all such counterparts shall together constitute one and the same instrument. | 26Counterparts
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Except as set forth in Section 2.11 of the Disclosure Schedules, since December 31, 2014, (a) the Company and each Company Subsidiary and, to the Knowledge of the Company, with respect thereto each director, officer, employee and representative of the Company and the Company Subsidiaries, in their capacities as such, have been, and have conducted their business, in compliance in all material respects with all Applicable Laws and Good Utility Practice and (b)(i) neither the Company nor any Company Subsidiary has received any written notice of any alleged material violation of Applicable Law from any Person (other than violations which have been withdrawn, resolved or otherwise remedied), and (ii) there are no material pending, or to the Knowledge of the Company, threatened, hearings, investigations or other Proceedings with respect to any such violation. The foregoing representations and warranties set forth in this Section 2.11 shall not apply to matters related to Taxes (which are dealt with exclusively in Section 2.17 ). | 19Compliance With Laws
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Each Debtor warrants that: (a) no financing statement (other than any that may have been filed on behalf of the Collateral Agent or in connection with Permitted Liens) covering any of the Collateral is on file in any public office; (b) such Debtor is the lawful owner, lessee or licensee (as applicable) of all of its Collateral, free of all liens and claims whatsoever, other than Permitted Liens, with full power and authority to execute and deliver this Agreement and perform such Debtor’s obligations hereunder and to subject the Collateral to the security interest hereunder; (c) all information with respect to Collateral and Account Debtors set forth in any schedule, certificate or other writing at any time heretofore or hereafter furnished by such Debtor to any Lender Party will be true and correct in all material respects as of the date furnished; (d) such Debtor’s jurisdiction of organization, true legal name as registered in such jurisdiction, organizational identification number, if any, designated by such jurisdiction and federal employer identification number are as set forth on Schedule I (and during the five-year period preceding the date hereof or, if later, the date such Debtor becomes a party hereto (the “ Preceding Period ”) such Debtor has not been organized under the law of any other jurisdiction except as set forth on Schedule I ); (e) each location where such Debtor maintains a place of business or has any Goods, in each case as of the date hereof, is set forth on Schedule II ; (f) except as disclosed on Schedule III , as of the date of this Agreement, such Debtor is not known, and during the Preceding Period has not previously been known, by any trade name; (g) except as disclosed on Schedule III , during the Preceding Period such Debtor has not been known by any legal name different from the one set forth on the signature pages of this Agreement nor has such Debtor been the subject of any merger or other corporate reorganization; (h) Schedule IV contains a complete listing of all of such Debtor’s Intellectual Property that is registered under any registration statute and has not subsequently been abandoned or expired; (i) Schedule VI hereto lists all Instruments, Letter of Credit Rights, and Chattel Paper of each Debtor; and (j) upon (i) the filing of financing statements on Form UCC-1 in the appropriate governmental offices, and (ii) the filing of Intellectual Property Security Agreements in substantially the form of Exhibits B-1 , B-2 , or B-3 , with the United States Copyright Office and/or the United States Patent and Trademark Office, as applicable, the Collateral Agent will have a valid lien upon and perfected security interest in all of the Collateral of such Debtor in which a security interest can be perfected by filing under the UCC (subject only to Permitted Liens permitted by the Loan Documents to have priority over the Liens granted in favor of the Collateral Agent). | 98Warranties
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Upon a Change in Control as defined in the Plan, the Units (to the extent not previously forfeited) shall become immediately and fully vested and shall convert to shares of Common Stock on the date of the Change in Control. | 17Change In Control
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Chaouch agrees not to disclose the contents of the provisions of this Agreement, its terms or conditions or the circumstances that resulted in or followed Chaouch's separation from employment, to any party, excluding immediate family, except as required by law or as is reasonably necessary for purposes of securing counsel from his attorney, accountant or financial adviser. Chaouch and the Company both agree not to make any statement, publicly or privately, written or verbal, to any third parties which may disparage or injure the goodwill, reputation and business standing of Chaouch or the Company, respectively. The Company shall instruct its officers and directors to avoid any such statement as well. In the event of any violation of this provision, and the Agreement, either party may seek all appropriate legal and equitable relief. Nothing in this Section 11 is intended to impose restrictions on either party beyond those that are permitted by law, including without limitation compliance with United States, French and Canadian securities laws and regulations, as well as directives of the respective agencies thereof. Nor is it intended to restrict the use of this Agreement as evidence in a subsequent proceeding in which any of the parties allege a breach of this Agreement. | 64Non-Disparagement
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The Company hereby guarantees that payments hereunder will be paid to the Administrative Agent without set-off or counterclaim in dollars or the applicable Agreed Currency in accordance with Section 2.18. | 68Payments
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Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) the Company and each Company Subsidiary owns or otherwise has the right to use, all intellectual property rights, including all trademarks, trade dress, trade names, service marks, domain names, patents, inventions, trade secrets, know-how, works of authorship and copyrights therein, that are used in the conduct of their existing businesses and all rights relating to the plans, design and specifications of any of its branch facilities (“ Proprietary Rights ”) free and clear of all liens and any claims of ownership by current or former employees, contractors, designers or others and (ii) neither the Company nor any of the Company Subsidiaries is materially infringing, diluting, misappropriating or violating, nor has the Company or any of the Company Subsidiaries received any written (or, to the knowledge of the Company, oral) communications alleging that any of them has materially infringed, diluted, misappropriated or violated, any of the Proprietary Rights owned by any other person. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, to the Company’s knowledge, no other person is infringing, diluting, misappropriating or violating, nor has the Company or any or the Company Subsidiaries sent any written communications since December 31, 2007, alleging that any person has infringed, diluted, misappropriated or violated, any of the Proprietary Rights owned by the Company and the Company Subsidiaries. | 53Intellectual Property
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The Committee may modify, extend or renew outstanding Options and authorize the grant of new Options in substitution therefor, provided that any such action may not, without the written consent of a Participant, impair any of such Participant’s rights under any Option previously granted. Subject to Section 18, the Committee may (a) reduce the Exercise Price of outstanding Options or (b) grant Options in substitution for cancelled options or other Awards authorized under the Plan. Any outstanding ISO that is modified, extended, renewed or otherwise altered will be treated in accordance with Section 424(h) of the Code. | 60Modifications
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This Series B Note may not be amended, modified, or changed, except only by an instrument in writing signed by the Company and the Holder. | 2Amendments
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The Company shall (a) by 9:00 a.m. (New York City time) on the Business Day immediately following the date hereof, issue a press release disclosing the material terms of the transactions contemplated hereby in the form approved by the Parties prior to the Closing and (b) file a Current Report on Form 8-K with the Commission disclosing the material terms of the transactions contemplated hereby, and including the Transaction Documents (as defined below) as exhibits thereto, within the time required by the 1934 Act.From and after the issuance of such press release, the Company represents to the Investor that the Company shall have publicly disclosed all material, non-public information delivered to the Investor by the Company or any of its Subsidiaries, or any of their respective officers, directors, employees or agents in connection with the transactions contemplated by the Transaction Documents.The Company and the Investor shall consult with each other in issuing any other press releases with respect to the transactions contemplated hereby, and neither the Company nor the Investor shall issue any such press release nor otherwise make any public statement without the prior consent of the other Party, which consent shall not unreasonably be withheld or delayed, except if such disclosure is required by law, in which case the disclosing party shall promptly provide the other party with prior written notice of such public statement or communication. | 71Publicity
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As of the Effective Date, the Borrower and the Subsidiaries, on a consolidated basis, are, and after giving effect to the transactions to occur on the Effective Date (including, without limitation, the initial public offering of the Parent, the initial disbursements to be made under this Agreement and the use of proceeds of each of the foregoing), will be, Solvent. | 80Solvency
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All warranties and representations made by NFC or the Company in this Agreement or in any of the instruments or documents delivered pursuant to this Agreement regardless of any investigation made shall be considered to have been relied upon by the other parties hereto and shall survive the delivery of any instruments or documents. | 85Survival
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You will be employed in the position of Chief Executive Officer of SWM, reporting directly to the SWM Board of Directors. Effective May 5, 2017, you will be the sole Chief Executive Officer of SWM. | 69Positions
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The section and subsection headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. No provision of this Agreement will be interpreted in favor of, or against, either of the parties to this Agreement by reason of the extent to which any such party or its counsel participated in the drafting thereof or by reason of the extent to which any such provision is inconsistent with any prior draft hereof or thereof. | 26Counterparts
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Upon settlement of the RSUs, or as of any other date on which the value of any RSUs otherwise becomes includible in the Participant’s gross income for tax purposes, any taxes of any kind required by law to be withheld with respect to such RSUs shall be satisfied by the Company withholding shares of Common Stock otherwise deliverable or payable to the Participant pursuant to this Agreement ( provided , however , that the amount of any shares of Common Stock so withheld shall not exceed the amount necessary to satisfy required federal, state, local and non-United States withholding obligations using the minimum statutory withholding rates for federal, state, local and/or non-U.S. tax purposes, including payroll taxes, that are applicable to supplemental taxable income), pursuant to any procedures, and subject to any limitations as the Committee may prescribe and subject to applicable law, based on the Fair Market Value of the shares of Common Stock on the payment date. The Company or an Affiliate may, in the discretion of the Committee, provide for alternative arrangements to satisfy applicable tax withholding requirements in accordance with Section 22 of the Plan. Regardless of any action the Company or any Affiliate takes with respect to any or all tax withholding obligations, the Participant acknowledges that the ultimate liability for all such taxes is and remains the Participant’s responsibility (or that of the Participant’s beneficiary). | 87Taxes
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Neither the execution, delivery or performance by such Purchaser of the Transaction Documents to which it is or shall be a party, nor the consummation by such Purchaser of the Contemplated Transactions herein or therein, does or shall violate, conflict with, breach or constitute a default under, or shall violate, conflict with, breach or constitute a default under (in each case, with or without the giving of notice, the lapse of time or both) any of the provisions of: (i) any of the organizational documents of such Purchaser; (ii) any Contract; (iii) any Applicable Law; or (iv) any Permit or Order or judgment applicable to such Purchaser. | 61No Conflicts
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This Guaranty Agreement, each Joinder Agreement and the terms, covenants and conditions hereof and thereof, shall be binding upon and inure to the benefit of the parties hereto and thereto, and to their respective heirs, legal representatives, successors and assigns; provided , however , that no Guarantor shall be permitted to assign any of its rights, powers, duties or obligations under this Guaranty Agreement, any Joinder Agreement or any other interest herein or therein except as expressly permitted herein or in the Floorplan Credit Agreement. Without limiting the generality of the foregoing sentence of this Section 18 , any Lender may assign to one or more Persons, or grant to one or more Persons participations in or to, all or any part of its rights and obligations under the Floorplan Credit Agreement (to the extent permitted by the Floorplan Credit Agreement); and to the extent of any such permitted assignment or participation such other Person shall, to the fullest extent permitted by law, thereupon become vested with all the benefits in respect thereof granted to such Lender herein or otherwise, subject however, to the provisions of the Floorplan Credit Agreement, including Article IX thereof (concerning the Administrative Agent) and Section 10.06 thereof concerning assignments and participations. All references herein to the Administrative Agent shall include any successor thereof. | 7Assignments
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Supplier shall maintain a complete list of all molds, mandrels and tooling in its possession that are used to produce the Products. A report of molds, mandrels and tooling condition, maintenance, and usage history shall be submitted to Sientra, upon written request of Sientra from time to time, during the Term. | 73Records
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The term of this Agreement shall have a term of six (6) months, commencing as of the Effective Date of this Agreement (the “Term” ). | 89Terms
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The Parent will, and will cause each Subsidiary to, pay when due all material Taxes required to be paid by it, except those which are being contested in good faith by appropriate proceedings and with respect to which adequate reserves have been set aside or nonpayment of which would not reasonably be expected to have a Material Adverse Effect. | 87Taxes
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No determination by any court, governmental body or otherwise that any provision of this Eleventh Amendment or any amendment hereof is invalid or unenforceable in any instance shall affect the validity or enforceability of (i) any other such provision or (ii) such provision in any circumstance not controlled by such determination. Each such provision shall be valid and enforceable to the fullest extent allowed by, and shall be construed wherever possible as being consistent with, applicable law. | 79Severability
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No amendment or waiver of any provision of this Agreement, the Notes, or any other Credit Document nor any consent to any departure by the Borrower therefrom, shall in any event be effective unless the same shall be in writing and signed by the Majority Lenders and the Borrower, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided , however , that no amendment, waiver, or consent shall, unless in writing and signed by each affected Lender, do any of the following: (a) reduce the principal of, or interest on, the Notes or any fees or other amounts payable to such Lender hereunder or under any other Credit Document (other than with respect to a waiver of default interest or to amend any financial covenant hereunder (or any defined term used therein), even if the effect of such amendment would be to reduce the rate of interest on any Advance or to reduce any fee payable hereunder), (b) postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees or other amounts payable hereunder or extend the Revolver Termination Date or the Final Maturity Date (provided that Majority Lenders can extend the Final Maturity Date pursuant to Section 2.18, but only with respect to the Extended Commitments of the Extending Lenders), (c) change the percentage of Lenders which shall be required for the Lenders or any of them to take any action hereunder or under any other Credit Document, (d) change the Pro Rata Share of any Lender (other than as a result of an increase in the Commitments pursuant to Section 2.14, a reallocation as a result of a Lender becoming, or ceasing to be, a Defaulting Lender pursuant to Section 2.17(a)(iv) or multiple maturity dates as a result of an extension of the Final Maturity Date pursuant to Section 2.18 by less than all of the Lenders), (e) amend Section 2.09, Section 2.13(a)(ii)(B), Section 7.06, Section 8.01 or this Section 9.01, (f) amend the definition of “Majority Lenders”, (g) release any Guarantor from its obligations under any Guaranty other than in connection with a transaction permitted under Section 6.04 or Section 6.06, or (h) release all or substantially all of the Collateral, except as permitted under Section 8.03(f); and provided , further , that (1) no Commitment of a Lender or any obligations of a Lender may be increased without such Lender’s written consent and (2) no amendment, waiver, or consent shall, unless in writing and signed by the Administrative Agent or the applicable Issuing Bank in addition to the Lenders required above to take such action, affect the rights or duties of the Administrative Agent or such Issuing Bank, as the case may be, under this Agreement or any other Credit Document. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of any Defaulting Lender may not be increased or extended without the consent of such Lender and (y) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than other affected Lenders shall require the consent of such Defaulting Lender. | 2Amendments
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Consultant’s obligations under Section 5 and Sections 7 through 11 of this Consulting Agreement, including all subparts, shall survive any termination or expiration of this Consulting Agreement. | 85Survival
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