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If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by rule of law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible. | 79Severability
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This Agreement shall remain in full force and effect unless and until the Support Agreement is terminated in accordance with its terms (except for a termination of the Support Agreement on account of the consummation of the Merger). In the event that the Merger Agreement is terminated in accordance with its terms, (i) this Agreement shall automatically and immediately terminate and be of no further force and effect, all without the need for any further action of the part of (or notice to) any person and (ii) there shall be no liability or obligation hereunder on the part of any Party or any of their respective affiliates, or any of their respective managers, directors, stockholders, members, partners, officers, employees, agents, consultants, accountants, attorneys, investment bankers, financial advisors, representatives, successors or assigns. Without limiting the immediately preceding sentence, if this Agreement is terminated then the Stockholders shall not be required to consummate the Specified Exchange. None of the representations or warranties made by any Party in Section 3 or Section 5 hereof, as applicable, shall survive the termination of this Agreement or the Effective Time. | 89Terms
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As of the Effective Date, this Agreement has been duly authorized, executed and delivered by Licensee and constitutes a legal, valid and binding agreement of Licensee, enforceable in accordance with its terms, except to the extent that enforcement hereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other Laws affecting enforcement of creditors’ rights or by general equitable principles. | 9Authority
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Subject to the terms and conditions hereof, SUN hereby agrees to issue and sell to the Purchaser, free and clear of any and all Liens, and the Purchaser hereby agrees to purchase from SUN, all of the Purchased Units, and the Purchaser agrees to pay SUN the Purchase Price. Upon payment of the Purchase Price at the Closing, the Purchased Units shall be fully paid for. | 77Sales
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No consent, approval, order or authorization of, or registration, declaration or filing with, any governmental authority or other Person (including, without limitation, the shareholders of any Person) is required in connection with the execution and delivery of this Note and the performance and consummation of the transactions contemplated thereby. | 5Approvals
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The LOC and Revolving Note are hereby modified to: (i) have a maturity date of September 18, 2018 (the “Extended Maturity Date”); and (ii) the following language shall be deleted “ The interest rate charged on this Revolving Note (hereinafter defined as “Note”) shall be adjusted daily (the Interest Adjustment Date) until the Maturity Date (as hereinafter defined) and shall be an annual rate of interest equal to the Wall Street Journal Prime Rate plus 2.25%, provided that in no case shall the interest rate charged hereon be less than an annual rate of interest of five and one half percent (5.5%)(the Interest Rate”) and replaced with the following “ The interest rate charged on this Revolving Note (hereinafter defined as “Note”) shall be adjusted daily (the Interest Adjustment Date) until the Extended Maturity Date (as hereinafter defined) and shall be an annual rate of interest equal to the Wall Street Journal Prime Rate plus 1.25%, provided that in no case shall the interest rate charged hereon be less than an annual rate of interest of five and one quarter percent (5.25%)(the Interest Rate”). The Revolving Note, as modified, shall be referred to as the “2017 Revolving Note”. Borrower shall (i) make monthly payments of such amount of interest as accrues in arrears on the outstanding principal balance of the 2017 Revolving Note due on the eighteenth (18 th ) day of each month beginning on the eighteenth (18 th ) day of April, 2017 and continuing thereafter on the eighteenth (18 th ) day of each month until the Extended Maturity Date and (ii) repay principal owed on the 2017 Revolving Note as and when principal payments are required under the Loan Agreement. All payments shall be applied first to any amounts owing to Lender other than interest and principal, second to accrued interest and third to the principal balance. Except as specifically modified herein, all other terms of the 2017 Revolving Note shall remain in full force and effect. | 68Payments
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Unless otherwise expressly provided herein, all notices and other communications provided for hereunder shall be in writing (including by facsimile transmission). All such written notices shall be mailed, faxed or delivered, to the applicable address, facsimile number or (subject to subsection (c) below) electronic mail address, specified for such Person on Schedule 10.02 or to such other address, facsimile number, or electronic mail address as shall be designated by such party in a notice to the other parties. All such notices and other communications shall be deemed to be given or made upon the earlier to occur of (i) actual receipt by the relevant party hereto and (ii) (A) if delivered by hand or by courier, upon delivery; (B) if delivered by mail, four Business Days after deposit in the mails, postage prepaid; (C) if delivered by facsimile, when sent and the sender has received electronic confirmation of error free receipt; and (D) if delivered by electronic mail (which form of delivery is subject to the provisions of subsection (c) below), when delivered; provided, however, that notices and other communications to Administrative Agent pursuant to Article II shall not be effective until actually received by Administrative Agent. In no event shall a phone call or voicemail message be effective as a notice, communication or confirmation hereunder. Notwithstanding anything to the contrary under this Agreement, any provision relating to any notices, requests and other communications to be made by Administrative Agent to any Borrower shall only be required to be made to one Borrower, and Administrative Agent shall only be required to rely on notices, requests and other communications from one Borrower on behalf of itself and the other Borrowers and not from all or any other Borrower. | 46General
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Except for transactions between or among Loan Parties or between or among Foreign Subsidiaries, sell or transfer any property or assets to, or purchase or acquire any property or assets from, or otherwise engage in any other transactions with, any of its Affiliates, except the Borrowers or any of their respective Restricted Subsidiaries may (a) engage in any of the foregoing transactions in the ordinary course of business at prices and on terms and conditions not less favorable to the Borrowers or such Restricted Subsidiaries than could be obtained on an arm’s-length basis from unrelated third parties; (b) subject to compliance with the other terms and conditions of this Agreement, engage in any of the foregoing transactions among the Borrowers and the other Restricted Subsidiaries so long as such transactions shall be (i) in the ordinary course of business and (ii) consistent with past practices and not materially adverse to the Lenders; (c) pay customary fees payable to any directors of the Borrowers and their respective Restricted Subsidiaries and reimburse reasonable out-of-pocket costs of the directors of the Borrowers and their respective Restricted Subsidiaries; (d) enter into employment and severance arrangements with their respective officers and employees in the ordinary course of business; (e) pay customary fees and indemnities to their respective directors, officers and employees in the ordinary course of business; (f) enter into the transactions set forth on Schedule 6.07 ; (g) make any intercompany investments contemplated by Section 6.04 ; (h) enter into transactions otherwise permitted by Section 6.05(a) and Section 6.06 ; and (i) consummate the Transactions. | 91Transactions With Affiliates
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The Company has filed all reports, schedules, forms, statements and other documents required to be filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the one year preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such material) (the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, together with the Prospectus and the Prospectus Supplement, being collectively referred to herein as the “ SEC Reports ”) on a timely basis 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. As of their respective dates, the SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable, and none of the SEC Reports, when filed, 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 Commission 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 financial position of the Company and its consolidated Subsidiaries 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. | 43Financial Statements
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This Agreement, along with the Proprietary Information Agreement, Sections 8, 10, 12, 15 and 23 of the Employment Agreement, and Employee’s written equity compensation agreements with the Company, represents the entire agreement and understanding between the Company and Employee concerning Employee’s separation from the Company. | 38Entire Agreements
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Capitalized terms used but not otherwise defined herein (including in the preamble and the recitals hereto) have the meanings assigned to them in the Credit Agreement. | 28Defined Terms
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No oral statement or prior written matter shall have any force or effect all of which shall merge herein and be superseded hereby. No waiver of any provision of this Agreement shall be effective unless in writing, signed by the waiving party. The parties agree that they are not relying on any representations or agreements other than those contained in this Agreement. This Agreement shall not be modified except by a writing subscribed by all parties, nor may this Agreement be canceled by either party except with the written consent of the other, unless otherwise specifically provided herein. The invalidity or unenforceability of any provisions of this Agreement shall not affect or impair any other provision, All captions herein are solely for convenience and shall not be given any legal effect. | 38Entire Agreements
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This Agreement may be executed in two or more identical counterparts, each of which shall be deemed to be an original, and all of which together shall constitute one and the same agreement. The Agreement may be delivered by facsimile transmission or email scan transmission of a signed copy thereof. | 26Counterparts
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During the Payment Term and for a period of [*] years thereafter, each Party shall maintain in strict confidence all Confidential Information and materials disclosed or provided to it by the other Party, except as approved in writing in advance by the disclosing Party, and shall not use or reproduce the disclosing Party’s Confidential Information for any purpose other than as required to carry out its obligations and exercise its rights pursuant to this Agreement (the “ Purpose ”). The Party receiving such Confidential Information (the “ Recipient ”) agrees to institute measures to protect the Confidential Information in a manner consistent with the measures it uses to protect its own most sensitive proprietary and confidential information, which must not be less than a reasonable standard of care. Notwithstanding the foregoing, the Recipient may permit access to the disclosing Party’s Confidential Information to those of its employees or authorized representatives having a need to know such information for the Purpose and who have signed confidentiality agreements or are otherwise bound by confidentiality obligations at least as restrictive as those contained herein. Each Party shall be responsible for the breach of this Agreement by its employees or authorized representatives. Each Party shall immediately notify the other Party upon discovery of any loss or unauthorized disclosure of the other Party’s Confidential Information. | 20Confidentiality
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The number of shares of Stock issuable for each RSU and the other terms and conditions of the grant evidenced by this Agreement are subject to adjustment as provided in Section 11 of the Plan. | 0Adjustments
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THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK (INCLUDING SECTIONS 5‑1401 AND 5‑1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW, BUT EXCLUDING ALL OTHER CHOICE OF LAW AND CONFLICTS OF LAW RULES). | 47Governing Laws
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This Amendment 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 Amendment by signing any such counterpart. | 26Counterparts
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The Award Recipient authorizes the Company to withhold from his or her compensation, including RSUs subject to the Award and the Settlement Shares issuable hereunder, to satisfy any income and employment tax withholding obligations in connection with the Award. No later than the date as of which an amount first becomes includible in the gross income of the Award Recipient for Federal income tax purposes with respect to any Settlement Shares subject to the Award, the Award Recipient shall pay to the Company, or make arrangements satisfactory to the Company regarding the payment of, all Federal, state and local income and employment taxes that are required by applicable laws and regulations to be withheld with respect to such amount. The Award Recipient agrees that the Company may delay delivery of the Settlement Shares until proper payment of such taxes has been made by the Award Recipient. If required pursuant to the Company’s policy as applied to the Award Recipient or elected by the Award Recipient, to the extent permitted by law, tax withholding obligations in respect of the Award shall be satisfied by authorizing the Company to withhold (provided the amount withheld does not exceed the maximum statutory tax rate in the Award Recipient’s applicable tax jurisdiction or such lesser amount as is necessary to avoid adverse accounting treatment for the Company) from the Settlement Shares otherwise issuable to the individual pursuant to the settlement of the Award, a number of shares having a Fair Market Value, as of the Tax Withholding Date, which will satisfy the amount of the withholding tax obligation. Further, unless determined otherwise by the Committee, the Award Recipient may satisfy such obligations under this paragraph 17 by any method authorized under Section 9 of the Plan. | 99Withholdings
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This Agreement, together with any exhibits and schedules thereto, contains the entire understanding of the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral or written, with respect to such matters, which the parties acknowledge have been merged into such documents, exhibits and schedules. | 38Entire Agreements
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Each Eligible Employee in the Plan who incurs a Change in Control Termination and who satisfies all of the conditions of Section 3.02 shall be eligible to receive the Severance Benefits described in the Plan. An Eligible Employee shall not be eligible to receive any other severance benefits from the Company or Subsidiary on account of a Change in Control Termination, unless otherwise provided in the Plan. In addition, any Eligible Employee who is a party to an employment agreement with the Company pursuant to which such Eligible Employee is entitled to severance benefits shall be ineligible to participate in the Plan. | 67Participations
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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 for each assignment; 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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This Agreement may be executed in two or more counterparts, each of which shall constitute an original but all of which, when taken together, shall constitute but one contract, and shall become effective as provided in Section 10.03. Delivery of an executed counterpart to this Agreement by facsimile or other electronic transmission (e.g., “PDF” or “TIFF”) shall be as effective as delivery of a manually signed original. | 26Counterparts
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The Company will pay all expenses incident to the performance of its obligations under this Agreement, including (i) the preparation, filing, including any fees required by the Commission, and printing of the Registration Statement (including financial statements and exhibits) as originally filed and of each amendment and supplement thereto and each Free Writing Prospectus, in such number as Cowen shall deem reasonably necessary, (ii) the printing and delivery to Cowen of this Agreement and such other documents as may be required in connection with the offering, purchase, sale, issuance or delivery of the Placement Shares, (iii) the preparation, issuance and delivery of the certificates, if any, for the Placement Shares to Cowen, including any stock or other transfer taxes and any capital duties, stamp duties or other duties or taxes payable upon the sale, issuance or delivery of the Placement Shares to Cowen, (iv) the fees and disbursements of the counsel, accountants and other advisors to the Company, (v) the fees and expenses of the transfer agent and registrar for the Common Stock, (vi) the filing fees incident to any review by FINRA of the terms of the sale of the Placement Shares, and (vii) the fees and expenses incurred in connection with the listing of the Placement Shares on the NASDAQ. | 41Expenses
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All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the applicable Administrative Agent’s Office in Dollars and in Same Day Funds not later than 2:00 p.m., New York City time, on the date specified herein. If, for any reason, the Borrower is prohibited by any Law from making any required payment hereunder in an Alternative Currency, the Borrower shall make such payment in Dollars in the Dollar Equivalent of the Alternative Currency payment amount. The Administrative Agent will promptly distribute to each Lender its Applicable Percentage of such payment in like funds as received by wire transfer to such Lender’s Lending Office. All payments received by the Administrative Agent after 3:00 p.m., New York City time shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be. | 46General
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No waiver by either party to this Agreement of any right to enforce any term or condition of this Agreement, or of any breach of this Agreement, shall be deemed a waiver of such right in the future or of any other right or remedy available under this Agreement. | 97Waivers
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The Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in Section 2 of the Securities Act) that would be integrated with the sale of the Backstop Units and Commitment Warrants in a manner that would require the registration under the Securities Act of the sale of the Backstop Units and Commitment Warrants or that would be integrated with the offer or sale of the Backstop Units and Commitment Warrants for purposes of the rules and regulations of any Trading Market such that it would require shareholder approval prior to the closing of such other transaction unless shareholder approval is obtained before the closing of such subsequent transaction. | 52Integration
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This Agreement shall be binding upon and inure to the benefit of the heirs, legal representatives, successors and permitted assigns of the parties. | 84Successors
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Borrowers shall have provided the Bank with evidence satisfactory to the Bank and its legal counsel that Borrowers have valid, defensible, unencumbered title to the Collateral, including (without limitation) title reports, title opinions (division order or otherwise regarding the Mortgaged Property), lien releases, and such evidence as shall be reasonably required by the Bank pertaining to all of the existing Mortgaged Property evidencing transfer of lawful title thereto to ELLC, on behalf and for ELLC with all equitable interests therein fully vested in ELLC for all purposes. | 90Titles
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Except as set forth in the ETP SEC Documents, there is no action, suit, or proceeding pending (including any investigation, litigation or inquiry) or, to ETP’s knowledge, contemplated or threatened against or affecting any of the ETP Parties or any of their respective officers, directors, properties or assets, which (a) questions the validity of this Agreement or the right of ETP to enter into this Agreement or to consummate the transactions contemplated hereby or (b) (individually or in the aggregate) would be reasonably likely to result in a ETP Material Adverse Effect. | 58Litigations
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Upon the Board Approval, the execution, delivery and performance by the Company of the Transaction Documents and the offer, issuance and sale of the Securities will require no consent of, action by or in respect of, or filing with, any Person, governmental body, agency, or official other than filings that have been made pursuant to applicable state securities laws and Principal Market listing requirements and post-sale filings pursuant to applicable state and federal securities laws that the Company undertakes to file within the applicable time periods. Subject to the accuracy of the representations and warranties of the Investor set forth in Section 5 hereof, the Company has taken all action necessary to exempt (i) the issuance and sale of the Securities, (ii) issuance of the Warrant Shares upon due exercise of the Warrants, and (iii) the other transactions contemplated by the Transaction Documents from the provisions of any stockholder rights plan or other “poison pill” arrangement, any anti-takeover, business combination or control share law or statute binding on the Company or to which the Company or any of its assets and properties may be subject and any provision of the Company’s Certificate of Incorporation or Bylaws that is or could reasonably be expected to become applicable to the Investor as a result of the transactions contemplated hereby, including without limitation, the issuance of the Securities and the ownership, disposition or voting of the Securities by the Investor or the exercise of any right granted to the Investor pursuant to this Agreement or the other Transaction Documents. | 22Consents
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Each Grantor will, upon demand, pay to the Administrative Agent the amount of any and all reasonable and documented or invoiced out-of-pocket costs and expenses that the Administrative Agent may incur in connection with (i) the administration of this Agreement, (ii) the custody, preservation, use or operation of, or the sale of, collection from or other realization upon, any of the Collateral of such Grantor, (iii) the exercise or enforcement of any of the rights of the Administrative Agent or the other Secured Parties hereunder or (iv) the failure by such Grantor to perform or observe any of the provisions hereof, in each case, in the manner, and to the extent, payable or reimbursable by the Borrower pursuant to Section 10.04 of the Credit Agreement, as if such section were set forth in full herein, mutatis mutandis . | 41Expenses
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All notices required or permitted under this Award Agreement shall be in writing and shall be delivered personally, by mailing by registered or certified mail, postage prepaid, or by electronic means as provided in Section 18 below to the other party. Notice by mail shall be deemed delivered at the time and on the date the same is postmarked. Electronic notices shall be deemed delivered when received. | 65Notices
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This Agreement will bind and inure to the benefit of the Company and the Participant and their respective beneficiaries, heirs, legatees, executors, administrators, estates, successors, assigns, legal representatives, guardians and caretakers. In no event may the Participant transfer or assign his or her rights under the Award. | 84Successors
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This Agreement and the rights and obligations of the parties hereto and thereto shall be governed by, and construed and interpreted in accordance with, the law of the State of New York, without reference to principles of conflicts of laws other than Sections 5-1401 and 5-1402 of the New York General Obligations Law if such provisions would lead to the application of law other than the State of New York. | 47Governing Laws
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All of the Awarded Shares shall immediately vest in full and all other restrictions placed on the Awarded Shares shall be removed (and no one-year holding requirement will apply) if both (1) a Change in Control occurs, and (2) at any time after the Change in Control and during the twenty-four (24) month period ending on the second anniversary of the Change in Control, your service with the Company, Sterling National Bank and/or any of their subsidiaries is terminated without Cause or for Good Reason. | 17Change In Control
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Capitalized terms used herein but not otherwise defined shall have the meaning ascribed to them in the Credit Agreement (as defined above). | 29Definitions
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Seller is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, and is qualified to do business in each jurisdiction in which the Publishing Assets are located. Seller has the requisite power and authority to execute, deliver and perform this Agreement and all of the other agreements and instruments to be made by Seller pursuant hereto (collectively, the “Seller Ancillary Agreements”) and to consummate the transactions contemplated hereby. | 66Organizations
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The Borrower will, and will cause each Subsidiary to, comply with all laws, rules, regulations and orders of any Governmental Authority applicable to it or its Property, except where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect. The Borrower will maintain in effect and enforce policies and procedures designed to ensure compliance in all material respects by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents with applicable Anti-Corruption Laws and applicable Sanctions. | 19Compliance With Laws
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The Employer shall continue to employ the Executive, and the Executive shall continue to serve the Employer, as the Executive Vice President and Chief Operating Officer of the Bank upon the terms and conditions set forth herein. The Executive shall have such authority and responsibilities consistent with his positions as are set forth in the Bank’s Bylaws or assigned by the Bank’s Board of Directors (the “Board”) from time to time. The Executive shall report to the Board and shall devote his full business time, attention, skill and efforts to the performance of his duties hereunder, except during (i) periods of illness or periods of vacation and leaves of absence consistent with Employer policy and (ii) periods of service as a referee for the National Football League. The parties acknowledge that the Executive currently serves and will continue to serve as a referee and agree to use reasonable efforts to minimize any business disruptions for the Employer or Executive related to the Executive’s service as a referee. Further, the Executive’s service on the boards of directors (or similar body) of other business or charitable entities is subject to the prior approval of the Board. The Employer shall have the right to require the Executive to resign from any board or similar body on which the Executive may then serve if the Board determines that such activity (i) interferes with the effective discharge of the Executive’s duties and responsibilities to the Employer or that any business related to such service is then in competition with any business of the Bank, its successors or assigns or (ii) could adversely affect the reputation of the Bank. | 35Employment
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Unless otherwise noted herein, terms defined in the Indenture and used herein shall have the meanings given to them in the Indenture or the Servicing Agreement. | 28Defined Terms
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On the Closing Date, upon the terms and subject to the conditions set forth herein, the Company agrees to sell, and the Purchaser agrees to purchase, up to an aggregate of总股数[22,225] of Shares. Upon receiving the Purchaser’s Subscription Amount on the Closing Date and the delivery by the Purchaser of the other items set forth in Section 2.2 deliverable at the Closing, the Company shall deliver the Shares to the Purchaser as determined pursuant to Section 2.2(a). | 18Closings
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Each of Holdings, the Borrower and each of its Restricted Subsidiaries has timely filed or caused to be filed all Tax returns and reports required to have been filed and has paid or caused to be paid all Taxes required to have been paid by it that are due and payable (including in its capacity as a withholding agent), except (a) Taxes (or any requirement to file Tax returns with respect thereto) that are being contested in good faith by appropriate proceedings and for which Holdings, the Borrower or such Restricted Subsidiary, as applicable, has set aside on its books adequate reserves in accordance with GAAP or (b) to the extent that the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. | 87Taxes
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This Amendment shall become retroactively effective as of October 1, 2017 (the “ Effective Date ”) after each of the following has occurred: (a) this Amendment shall have been executed and delivered by a duly authorized officer of each party hereto, (b) the Fifth Amendment and Joinder Agreement to Originator Purchase Agreement shall have been executed and delivered by a duly authorized officer of each party thereto and delivered to the Agent, together with all opinions and other documents required thereunder, and (c) Seller shall have paid the reasonable fees and disbursements of Barnes & Thornburg LLP in connection with the Purchase Agreement, this Amendment and the third amended and restated Fee Agreement. | 33Effective Dates
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THE GUARANTOR IRREVOCABLY WAIVES ANY AND ALL RIGHT THE GUARANTOR MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR CLAIM OF ANY NATURE RELATING TO THIS GUARANTY, ANY DOCUMENTS EXECUTED IN CONNECTION WITH THIS GUARANTY OR ANY TRANSACTION CONTEMPLATED IN ANY OF SUCH DOCUMENTS. THE GUARANTOR ACKNOWLEDGES THAT THE FOREGOING WAIVER IS KNOWING AND VOLUNTARY. | 96Waiver Of Jury Trials
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The Administrative Agent shall have received evidence of insurance coverage in form, scope, and substance reasonably satisfactory to the Administrative Agent and otherwise in compliance with the terms of Section 6.6 hereof. The Administrative Agent or its designee shall have completed a satisfactory review of such insurance coverage and related documentation. The Borrower shall have delivered to the Administrative Agent a description of all insurance maintained by or on behalf of the Loan Parties and their Subsidiaries as of the Closing Date. | 51Insurances
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This Agreement shall be binding upon and inure to the benefit of the Borrowers, the Lenders and the Agent, and their respective successors and assigns, except that the Borrowers may not assign or transfer their rights hereunder without the prior written consent of all of the Lenders. | 13Binding Effects
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Except as would not impair in any material respect the ability of such Seller to consummate its obligations hereunder, all consents, approvals, authorizations and orders necessary for the execution and delivery by such Seller of this Agreement, and for the sale and delivery of the Repurchase Shares to be sold by such Seller hereunder, have been obtained; and such Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Repurchase Shares to be sold by such Seller hereunder; this Agreement has been duly authorized, executed and delivered by or on behalf of such Seller. | 9Authority
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The guaranty set forth in this Article XI is a continuing guaranty and shall (i) remain in full force and effect until the later of (A) the indefeasible payment in full in cash of all Obligations payable under this Agreement and (B) the Final Termination Date, (ii) be binding upon the Parent Borrower, its successors and assigns and (iii) inure to the benefit of and be enforceable by the Administrative Agent and the Lenders and their respective successors, transferees and assigns. | 7Assignments
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If the Executive commits a material breach of any of the provisions of the Proprietary Matters Agreement referred to in Section 5.1, the Executive shall forfeit all rights to receive any amounts of any nature whatsoever from the Company under this Agreement or otherwise, and the Company will be entitled to the remedies provided under the Proprietary Matters Agreement and any other rights and remedies the Company may have pursuant to applicable laws. | 37Enforcements
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Within 30 days following the occurrence of the Participant’s Termination, TopCo will pay the Participant the Bonus Payment Value, if any, calculated as of the date of such Termination; provided that to the extent that any Subject Interests issued pursuant to a Class B Appreciation Award Agreement (the “ Appreciation Interests ”) are unvested as of the Participant’s Termination and remain outstanding and eligible to vest following the Participant’s Termination pursuant to the terms of such Class B Appreciation Award Agreement, then the additional Bonus Payment Value with respect to such unvested Appreciation Interests, if any, will be paid within 30 days of the vesting of such Appreciation Interests (as applicable, the “ Determination Date ”), with the additional Bonus Payment Value, if any, calculated as of the date of such Termination and based on the Appreciation Interests which vest on the Determination Date; provided , further, that if such unvested Appreciation Interests are forfeited, the additional Bonus Payment Value on the Determination Date shall be $0. Notwithstanding the foregoing, if the value of the Company in the Hypothetical Sale is less than $_________, then the Bonus Payment Value shall be $0. | 88Terminations
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For purposes of this Employment Agreement, a “Change in Control” shall be deemed to have occurred if (i) there shall be consummated (A) any consolidation or merger of the Company in which the Company is not the continuing or surviving corporation or pursuant to which shares of the Company’s Common Stock would be converted into cash, securities or other property, other than a merger of the Company in which the holders of the Company’s Common Stock immediately prior to the merger have substantially the same proportionate ownership of common stock of the surviving corporation immediately after the merger, or (B) any sale, lease, exchange or other transfer (in one transaction or a series of related transactions) of all or substantially all the assets of the Company, or (ii) the stockholders of the Company shall approve any plan or proposal for the liquidation or dissolution of the Company, or (iii) any person (as such term is used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934 (the “Exchange Act”)), other than the Company, the Employee or any Employee benefit plan sponsored by the Company, or such person on the Effective Date hereof is a 20% or more beneficial owner, shall become the beneficial owner (within the meaning of Rule 13d-3 under the Exchange Act) of securities of the Company representing 30% or more of the combined voting power of the Company’s then outstanding securities ordinarily (and apart from rights accruing in special circumstances) having the right to vote in the election of directors, as a result of a tender or exchange offer, open market purchases, privately negotiated purchases or otherwise, or (iv) at any time during a period of two consecutive years, individuals who at the beginning of such period, constituted the Board of Directors of the Company shall cease for any reason to constitute at least a majority thereof, unless the election or the nomination for election by the Company’s stockholders of each new director during such two-year period was approved by a vote of at least two-thirds of the directors then still in office, who were directors at the beginning of such two-year period. | 17Change In Control
|
Any payment of cash or any issuance or transfer of shares of Stock or other property to Employee or to Employee’s legal representative, heir, legatee or distributee, in accordance with the provisions hereof, shall, to the extent thereof, be in full satisfaction of all claims of such persons hereunder. The Corporation may require Employee or Employee’s legal representative, heir, legatee or distributee, as a condition precedent to such payment or issuance, to execute a release and receipt therefor in such form as the Corporation shall determine. | 74Releases
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The Company agrees to pay all reasonable and documented out-of-pocket costs and expenses of the Administrative Agent in connection with the preparation, execution and delivery of this Third Amendment, including without limitation the reasonable and documented fees and expenses of the Administrative Agent’s legal counsel, in each case, in the manner set forth in Section 10.04 of the Credit Agreement. | 41Expenses
|
The parties agree that this Agreement shall be construed solely in accordance with the laws of the State of Delaware, notwithstanding its choice or conflict of law principles, and any proceedings arising among the parties in any matter pertaining or related to this Agreement shall, to the extent permitted by law, be heard solely in the State and/or Federal courts located in Delaware. | 47Governing Laws
|
This Amendment will be governed by, and construed and enforced in accordance with, the Laws of the State of Florida, without giving effect to any choice of Law or conflict of Law provision or rule that would cause the application of the Laws of any jurisdiction other than the State of Florida. | 47Governing Laws
|
No Default or Event of Default has occurred and is continuing under the Facility Documents. | 62No Defaults
|
If a court of competent jurisdiction finds any provision of this Agreement to be illegal, invalid, or unenforceable as to any person or circumstance, that finding shall not make the offending provision illegal, invalid, or unenforceable as to any other person or circumstance. If feasible, the offending provision shall be considered modified so that it becomes legal, valid and enforceable. If the offending provision cannot be so modified, it shall be considered deleted from this Agreement. Unless otherwise required by law, the illegality, invalidity, or unenforceability of any provision of this Agreement shall not affect the legality, validity or enforceability of any other provision of this Agreement. | 79Severability
|
The Company, whether or not the transactions contemplated hereunder are consummated or this Agreement is terminated, in accordance with the provisions of Section 11 hereunder, will pay the following expenses all incident to the performance of its obligations hereunder, including, but not limited to, expenses relating to (i) the preparation, printing and filing of the Registration Statement and each amendment and supplement thereto, of each Prospectus and of each amendment and supplement thereto, (ii) the preparation, issuance and delivery of the Placement Shares, (iii) the qualification of the Placement Shares under securities laws in accordance with the provisions of Section 7(d) of this Agreement, including filing fees (provided, however, that any fees or disbursements of counsel for Cowen in connection therewith shall be paid by Cowen except as set forth in (vii) below), (iv) the printing and delivery to Cowen of copies of the Prospectus and any amendments or supplements thereto, and of this Agreement, (v) the fees and expenses incurred in connection with the listing or qualification of the Placement Shares for trading on Nasdaq, (vi) the filing fees and expenses, if any, of the Commission, (vii) the filing fees and associated legal expenses of Cowen’s outside counsel for filings with the FINRA Corporate Financing Department, such legal expense reimbursement not to exceed $10,000 and, (viii) the reasonable fees and disbursements of Cowen’s counsel in an amount not to exceed $50,000. | 41Expenses
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At the Closing, the Company shall use the proceeds of the issuance of the Preferred Stock to repay the Existing Credit Facility and pay the fees and expenses incurred in connection with the transactions contemplated by this Agreement. | 92Use Of Proceeds
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The execution and delivery of this Agreement by such Covenantor does not, and the performance of this Agreement by such Covenantor will not conflict with, breach, result in any violation of or default (with or without notice or lapse of time, or both) under, create any Lien under, or give rise to a right of termination, cancellation, acceleration, suspension, revocation or amendment under, any provision of (i) its organizational documents, (ii) any agreement or instrument to which such Covenantor is party, (iii) any Order applicable to the Covenantor or by which any of the properties or assets of the Covenantor are bound; or (iv) any applicable Law. | 61No Conflicts
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At the Closing, the Company shall reimburse Buyer for expenses incurred by them in connection with the negotiation, preparation, execution, delivery and performance of this Agreement and the other agreements to be executed in connection herewith (“Documents”), including, without limitation, reasonable attorneys’ and consultants’ fees and expenses, transfer agent fees, fees for stock quotation services, fees relating to any amendments or modifications of the Documents or any consents or waivers of provisions in the Documents, fees for the preparation of opinions of counsel, escrow fees, and costs of restructuring the transactions contemplated by the Documents. When possible, the Company must pay these fees directly, otherwise the Company must make immediate payment for reimbursement to the Buyer for all fees and expenses immediately upon written notice by the Buyer or the submission of an invoice by the Buyer. The Company’s obligation with respect to this transaction is to reimburse Buyer’s expenses shall be $1,000 in legal fees, which shall be deducted from the Note when funded. | 41Expenses
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The parties hereto shall not assign this Agreement or their interest in the PSA or the OTA, in whole or in part, without the prior written consent of the other party, except to an affiliate of that party. | 7Assignments
|
Each of the Group Companies is classified as a disregarded entity pursuant to section 301.7701-3 of the Treasury regulations. None of the Group Companies has made an election pursuant to section 301.7701-3 of the Treasury regulations to be classified as an association. To Seller’s Knowledge: (i) all tax returns and tax reports required by Governmental Authority with respect to the Group Companies have been filed on a timely basis (including extensions) and are true, correct and complete; (ii) all taxes shown due on tax returns filed with any Governmental Authority with respect to taxes paid by or with respect to the Group Companies have been paid; (iii) no claim has been made or is expected to be made by any Governmental Authority with respect to taxes paid by or with respect to the Group Companies on their tax returns; and (iv) there are no encumbrances on any of the Mineral Assets that have arisen in connection with any failure (or alleged failure) of the Group Companies to pay any tax to any Governmental Authority. | 87Taxes
|
Each of the Company and the Company Subsidiaries has complied in all material respects with, and is not in violation in any material respect of, any and all Legal Requirements. Within the past three (3) years, neither the Company nor any Company Subsidiary has received any written notices of suspected, potential or actual violation in any material respect with respect to any Legal Requirement. Section 2.9(a) of the Disclosure Schedule sets forth each Permit (a) pursuant to which the Company and each Company Subsidiary currently operates or holds any interest in any of its properties or (b) which is required for the operation of the businesses of the Company and the Company Subsidiaries as currently conducted or the holding of any such interest (collectively, “ Company Authorizations ”) in each case that is material to the Company or any Company Subsidiary. All of the Company Authorizations set forth on Section 2.9(a) of the Disclosure Schedule are in full force and effect and constitute all Company Authorizations required to permit the Company and each Company Subsidiary to operate or conduct its business or hold any interest in its properties or assets. | 46General
|
The parties hereto agree that the Company would be irreparably damaged if for any reason any Equityholder fails to perform any of its obligations under this Agreement and that the Company may not have an adequate remedy at law for money damages in such event. Accordingly, the Company shall be entitled to specific performance and injunctive and other equitable relief to prevent breaches of this Agreement or to enforce specifically the performance of the terms and provisions hereof in any Delaware Court, in addition to any other remedy to which they are entitled at law or in equity, in each case without posting bond or other security, and without the necessity of proving actual damages. | 81Specific Performance
|
As between the Secured Parties, the Collateral Agent, acting at the direction of the Applicable Authorized Representative, shall have the exclusive right, subject to the rights of the Grantors under the First Lien Secured Documents, to settle and adjust claims in respect of Shared Collateral under policies of insurance covering or constituting Shared Collateral and to approve any award granted in any condemnation or similar proceeding, or any deed in lieu of condemnation, in respect of the Shared Collateral; provided that any Proceeds arising therefrom shall be subject to Section 2.01(b). | 51Insurances
|
Grom has not incurred, nor will it incur, directly or indirectly, any liability for brokerage or finders' fees or agent's commissions or any similar charges in connection with this Agreement or the Transaction contemplated hereby. | 15Brokers
|
Except to the extent that the Plan may be subject to the provisions of ERISA, the Plan will be construed and enforced according to the laws of the State of New York, without giving effect to the conflict of laws principles thereof. | 47Governing Laws
|
This Agreement, as amended, constitutes the entire agreement between the parties with respect to the subject matter herein and specifically supersedes any existing severance benefits under any plans, program, policy or agreements to which the Executive may be entitled, as well as any change in control, stay bonus, severance or similar agreements previously entered into by, or for the benefit of, the Executive and by the Company and/or the Bank (whether oral or written), its predecessors or their affiliates. The Executive hereby acknowledges that he has received sufficient consideration for substitution of this Agreement for any prior such agreement. | 38Entire Agreements
|
This Agreement may be executed in two or more identical counterparts, and it shall not be necessary that any one of the counterparts be executed by all of the parties hereto. Each fully or partially executed counterpart shall be deemed an original, but all of such counterparts taken together shall constitute one and the same instrument. | 26Counterparts
|
The Plan shall take effect on June 7, 2017 subject to approval by the shareholders of the Company as required by Section 423 of the Code, which approval must occur within twelve months of the adoption of the Plan by the Board. | 33Effective Dates
|
All funds paid by the Investors to the Company in connection with the transactions contemplated hereunder, without any deductions for fees or expenses, shall be used by the Company as set forth in the Rights Offering Term Sheet. | 92Use Of Proceeds
|
The representations, warranties, covenants and agreements made herein shall survive any investigation made by any Purchaser and the Closings of the transactions contemplated hereby indefinitely. | 85Survival
|
Subject to the provisions of this Agreement, the Company hereby employs as of the Effective Date the Executive and the Executive accepts such employment upon the terms and conditions hereinafter set forth. Executive agrees that the Prior Agreement is terminated and no longer in force and effect as of the Effective Date, which the parties agree was July 1, 2014. | 35Employment
|
Agent shall not in any way be responsible for the performance or discharge of, and Agent does not hereby undertake to perform or discharge of, any obligation, duty, responsibility, or liability of Pledgors in connection with the Pledged Collateral or otherwise. Pledgors hereby agree to indemnify Agent and hold Agent harmless from and against all losses, liabilities, damages, claims, or demands suffered or incurred by reason of this Agreement or by reason of any alleged responsibilities or undertakings on the part of Agent to perform or discharge any obligations, duties, responsibilities, or liabilities of Pledgors in connection with the Pledged Collateral or otherwise; provided, however, that the foregoing indemnity and agreement to hold harmless shall not apply to losses, liabilities, damages, claims, or demands suffered or incurred by reason of Agent’s own gross negligence or willful misconduct. Agent shall have no duty to collect any amounts due or to become due in connection with the Pledged Collateral or enforce or preserve any Pledgor’s rights under this Agreement. | 49Indemnifications
|
The obligations of Borrowers under Sections 2.2, Article III, 4.18(d), and 16.5 and the obligations of Lenders under Section 14.7, shall survive termination of this Agreement and the Other Documents and payment in full of the Obligations. | 85Survival
|
Section headings used in this Third Amendment are for convenience of reference only, are not part of this Third Amendment, and are not to be taken into consideration in interpreting this Third Amendment. | 48Headings
|
Neither this Agreement nor any of the rights, interests or obligations under this Agreement shall be assigned, in whole or in part, by operation of law or otherwise by any of the Parties without the prior written consent of the other Parties. Any purported assignment without such consent shall be void. Subject to the preceding sentences, this Agreement will be binding upon, inure to the benefit of, and be enforceable by, the Parties and their respective successors and assigns. | 7Assignments
|
The Associate acknowledges and agrees that the Associate is responsible for paying all taxes and related penalties, and interest on the Associate’s income. Walmart will withhold taxes, including from amounts or benefits payable under this Agreement, and report them to tax authorities, as it determines it is required to do. Although the payments under this Agreement are intended to comply with the requirements of Section 409A and Walmart intends to administer this Agreement so that it will comply with Section 409A, Walmart has not warranted to the Associate that taxes and penalties will not be imposed on the Associate under Section 409A or any other provision of federal, state, local, or non-United States law. The Associate will indemnify Walmart and hold it harmless with respect to all such taxes, penalties, and interest (other than FICA taxes imposed on Walmart with respect to the Associate’s income). | 87Taxes
|
The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption Agreement and to consummate the transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Agreement or any other Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Documents or any collateral thereunder, (iii) the financial condition of the Company or any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Document or (iv) the performance or observance by the Company or any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Document. | 76Representations
|
Notwithstanding any terms or conditions in this Agreement to the contrary, any Person may disclose to any and all Persons, without limitation of any kind, the tax treatment and structure of the Transaction and all materials of any kind (including, without limitation, opinions or other tax analyses) that are provided relating to such tax treatment and tax structure. For the avoidance of doubt, this authorization is not intended to permit disclosure of the names of, or other identifying information regarding, the participants in the Transaction, or of any information or the portion of any materials not relevant to the tax treatment or structure of the Transaction. | 31Disclosures
|
The authorized equity securities of each of the Credit Parties as of the Closing Date are as set forth on Schedule 3.4 to the Disclosure Letter. All issued and outstanding equity securities of each of the Credit Parties are duly authorized and validly issued, fully paid and nonassessable. All issued and outstanding equity securities of any Subsidiary of any Credit Party are free and clear of all Liens other than those in favor of Agent for the benefit of Agent and Lenders, and such equity securities were issued in compliance with all applicable Laws. The identity of the holders of the equity securities of each of the Credit Parties (other than Invuity) and the percentage of their fully-diluted ownership of the equity securities of each of the Credit Parties as of the Closing Date is set forth on Schedule 3.4 to the Disclosure Letter. Except as set forth on Schedule 3.4 to the Disclosure Letter, as of the Closing Date there are no preemptive or other outstanding rights, options, warrants, conversion rights or similar agreements or understandings for the purchase or acquisition from any Credit Party of any equity securities of any such entity. | 16Capitalization
|
Capital One and You hereby consent and submit to the personal jurisdiction and venue of any state or federal court located in Delaware or Virginia for resolution of any and all claims, causes of action or disputes arising out of or related to this Agreement. | 94Venues
|
If you cease to be an Employee as a result of your death prior to the Scheduled Vesting Date, then the Performance Period will be truncated and will end as of the end of the Company’s most recently completed fiscal year prior to the date of your death. You will be entitled to have vest as of the date of your death a number of Performance Share Units equal to the sum of (i) the number of Performance Share Units determined by the Committee to have been earned and entitled to vest in accordance with the last section of Appendix A over the truncated Performance Period, plus (ii) the Target Number of Units multiplied by a fraction whose numerator is the number of fiscal years in the original Performance Period that were not included in the truncated Performance Period, and the denominator of which is three. | 27Death
|
The Company shall use the net proceeds from the sale of the Securities hereunder for working capital purposes and payment of up to $700,000 of Diagnostics debt, and shall not use such proceeds: (a) for the satisfaction of any portion of the Company’s other debt, (b) for the redemption of any Common Stock or Common Stock Equivalents, (c) for the settlement of any outstanding litigation or (d) in violation of FCPA or OFAC regulations. | 92Use Of Proceeds
|
To the best of Borrower's knowledge, all of Borrower's tax returns and reports that are or were required to be filed, have been filed, and all taxes, assessments, and other governmental charges have been paid in full, except those which are presently being, or are going to be, contested by Borrower in good faith in the ordinary course of business and for which adequate reserves have been provided. | 87Taxes
|
If any part of this Option Agreement is declared by any court or governmental authority to be unlawful or invalid, such unlawfulness or invalidity shall not serve to invalidate any part of this Option Agreement not declared to be unlawful or invalid. Any part so declared unlawful or invalid shall, if possible, be construed in a manner which gives effect to the terms of such part to the fullest extent possible while remaining lawful and valid. | 79Severability
|
This Agreement, and the other documents referred to herein or therein or delivered pursuant hereto or thereto which form part hereof constitute the entire agreement and understanding between the parties hereto and supersedes all prior agreements and understandings relating to the subject matter hereof. | 38Entire Agreements
|
Each of the Borrower and its Subsidiaries has title in fee simple to, or a valid leasehold interest in, all its material real property, and good title to, or a valid leasehold interest in, all its other material property, and none of such property is subject to any Lien except as permitted by Section 7.3. | 57Liens
|
On the Closing Date, upon the terms and subject to the conditions set forth herein, the Company agrees to sell, and each Purchaser agrees to purchase, the Shares identified on such Purchaser’s signature page hereto. At the Closing, each Purchaser shall deliver to the Company, via wire transfer, immediately available funds equal to such Purchaser’s Subscription Amount or settle via delivery versus payment (“ DVP ”) through DTC with the Placement Agent, the Company shall deliver to the Purchasers the Shares as determined pursuant to Section 2.3(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.3 deliverable at the Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.3 and 2.4, the Closing shall occur at such location or by electronic exchange of documents, as the parties shall mutually agree. | 18Closings
|
Each of the representations and warranties (together with any related disclosure schedules thereto) made by the Company to the Purchasers in those certain Purchase Agreements dated as of January 3, 2017, between the Company and each Purchaser, is hereby incorporated herein by reference (as though fully restated herein) and is, as of the date of this Agreement, hereby made to, and in favor of, the Placement Agent. Each of the representations and warranties (together with any related disclosure schedules thereto) made by the Company to Maxim in the Letter of Engagement dated July 1, 2016, between the Company and Maxim, is hereby incorporated herein by reference (as though fully restated herein) and is, as of the date of this Agreement, hereby made to, and in favor of, the Placement Agent. | 76Representations
|
Except as otherwise provided in subsection 2.1., your Performance Share Award will vest only if you are employed with Chevron at the end of the Performance Period. | 95Vesting
|
All notices, requests, consent and demands hereunder shall be made in writing in the manner described in the Purchase Agreement. | 65Notices
|
Any modification or rescission of this Agreement shall be ineffective unless in writing and signed by both parties hereto. Notice of acceptance of this Agreement by Lender is hereby waived by Debtor. | 60Modifications
|
This Agreement may be executed in two or more counterparts, all of which together shall be deemed one original. | 26Counterparts
|
Both Seller and Buyer agree to execute and deliver, from time to time, such other and additional instruments, notices, transfer orders and other documents, and to do all such other and further acts and things as may be necessary to more fully and effectively transfer and assign the Lion Oil Inventory to Buyer. | 45Further Assurances
|
Any ambiguity in this BAA shall be resolved to permit compliance by the parties with HIPAA and HITECH. | 55Interpretations
|
If any provision of this Amendment is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Amendment shall not be affected or impaired thereby and (b) the parties hereto shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which is as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. | 79Severability
|
The Employee agrees to cooperate with the Company, during the Covered Employment Term and thereafter (including following the Employee’s termination of employment for any reason), by making himself reasonably available to testify on behalf of the Company or any of its subsidiaries or affiliates in any action, suit, or proceeding, whether civil, criminal, administrative, or investigative, and to assist the Company or any affiliate or subsidiary thereof, in any such action, suit, or proceeding, by providing information and meeting and consulting with the Company’s Board of Directors or its representatives or counsel, or representatives or counsel to the Company or any subsidiary or affiliate thereof as reasonably requested; provided , however that the same does not materially interfere with his then-current professional activities and is not contrary to the best interests of the Employee. The Company agrees to reimburse the Employee, on an after-tax basis, for all expenses actually incurred in connection with his provision of testimony or assistance. | 45Further Assurances
|
If any part of this Plan is declared by any court or governmental authority to be unlawful or invalid, such unlawfulness or invalidity shall not invalidate any other part of this Plan. Any section or part of a section so declared to be unlawful or invalid shall, if possible, be construed in a manner which will give effect to the terms of such section or part of a section to the fullest extent possible while remaining lawful and valid. | 79Severability
|
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