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This Third Amendment may be executed in any number of counterparts and by different parties hereto on separate counterparts, each of which when so executed and delivered shall be deemed to be an original, but all of which when taken together shall constitute a single instrument. Delivery of an executed counterpart of a signature page of this Third Amendment by facsimile or any other electronic transmission shall be effective as delivery of a manually executed counterpart hereof. | 26Counterparts
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No Borrower shall cause or permit any ERISA Affiliate to cause or permit to occur an event which could result in the imposition of a Lien under Section 412 of the Internal Revenue Code or Section 302 or 4068 of ERISA. | 39Erisa
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This Amendment may be executed in any number of counterparts and by different parties and separate counterparts, each of which when so executed and delivered, shall be deemed an original, and all of which, when taken together, shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Amendment by telefacsimile or other electronic transmission shall be effective as delivery of a manually executed counterpart of this Amendment. | 26Counterparts
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As a condition to receiving the payments and benefits set forth in Section 4(b), Executive shall be required, within 60 days of Executive’s Date of Termination (including, without limitation, a Date of Termination that occurs after the expiration of the Term), to execute, deliver and not revoke (with any applicable revocation period having expired) a general release of claims in a form attached hereto as Exhibit A. To the extent required by Section 19, any payments or benefits that would otherwise have been made during such 60-day period shall not be made and shall be accumulated and paid in a single lump sum on the expiration of such 60-day period. | 74Releases
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Subject to your compliance with your obligations under this Agreement, you shall remain entitled to the same indemnification from the Company, and the benefits of any Company owned insurance policies (in accordance with the terms and conditions of such policies), for your acts and omissions in connection with your employment by the Company and service as a member of the board of directors of the Company, as and to the same extent you were so entitled immediately prior to the Separation Date. | 49Indemnifications
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The Administrative Agent shall have received a certificate (in form and substance reasonably satisfactory to the Administrative Agent) from the Chief Financial Officer and Treasurer of the general partner of the Parent Guarantor certifying that the Parent Guarantor and its Subsidiaries, considered as a whole, after giving effect to the transactions contemplated hereby to occur on the Closing Date, are Solvent. | 80Solvency
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The Company agrees to indemnify the Consultant and hold it harmless against any losses, claims, damages or liabilities incurred by the Consultant, in connection with, or relating in any manner, directly or indirectly, to the Consultant rendering the Services in accordance with the Agreement, unless it is determined by a court of competent jurisdiction that such losses, claims, damages or liabilities arose out of the Consultant’s breach of this Agreement, sole negligence, gross negligence, willful misconduct, dishonesty, fraud or violation of any applicable law. Additionally, the Company agrees to reimburse the Consultant immediately for any and all expenses, including, without limitation, attorney fees, incurred by the Consultant in connection with investigating, preparing to defend or defending, or otherwise being involved in, any lawsuits, claims or other proceedings arising out of or in connection with or relating in any manner, directly or indirectly, to the rendering of any Services by the Consultant in accordance with the Agreement (as defendant, nonparty, or in any other capacity other than as a plaintiff, including, without limitation, as a party in an interpleader action). The Company further agrees that the indemnification and reimbursement commitments set forth in this paragraph shall extend to any controlling person, strategic alliance, partner, member, shareholder, director, officer, employee, agent or subcontractor of the Consultant and their heirs, legal representatives, successors and assigns. The provisions set forth in this Section shall survive any termination of this Agreement. | 49Indemnifications
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None of the Loan Parties is in default under or with respect to any of its Contractual Obligations (other than those governing Indebtedness of any Loan Party) in any respect, that could reasonably be expected to have a Material Adverse Effect, and no Default or Event of Default has occurred and is continuing which has not been disclosed a Borrower in accordance with Section 5.7(a) and waived in writing by the Administrative Agent and the Required Lenders. | 62No Defaults
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Seller shall not create, incur, assume or suffer to exist any mortgage, pledge, Lien, charge or other encumbrance of any nature whatsoever on any of the Repurchase Assets, whether real, personal or mixed, now or hereafter owned, other than the Liens created in connection with the transactions contemplated by this Agreement; nor shall Seller cause any of the Purchased Assets to be sold, pledged, assigned or transferred except as permitted hereunder. | 57Liens
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No waiver or course of dealing shall be established by (a) the failure or delay of the Administrative Agent or any Lender to require strict performance by the Borrower with any terms of the Loan Documents, or to exercise any rights or remedies with respect to Collateral or otherwise; (b) the making of any Loan during a Default, Event of Default or other failure to satisfy any conditions precedent; or (c) acceptance by the Administrative Agent or any Lender of any payment or performance by an Obligor under any Loan Documents in a manner other than that specified therein. | 97Waivers
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The Company confirms that it has not provided, and to the Company’s Knowledge, none of its officers or directors nor any other Person acting on its or their behalf has provided, and it has not authorized the Placement Agent to provide, any Purchaser or its respective agents or counsel with any information that it believes constitutes material, non-public information except insofar as the existence, provisions and terms of the Transaction Documents and the proposed transactions hereunder may constitute such information, all of which will be disclosed by the Company in the Press Release as contemplated by Section 4.6 hereof. The Company understands and confirms that the Purchasers will rely on the foregoing representations in effecting transactions in securities of the Company. | 31Disclosures
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The execution, delivery and performance by the Purchaser of the Agreement to which it is a party and the Contemplated Transactions (a) have been duly authorized by all necessary corporate or other action, (b) do not contravene the terms of the Purchaser’s organizational documents, and (c) do not violate, conflict with or result in any breach or contravention of, or the creation of any Lien under, any Contractual Obligation of the Purchaser or any Requirement of Law applicable to the Purchaser, except for such violations, conflicts, breaches or Liens which, individually or in the aggregate, have not had and would not reasonably be expected to have a material adverse effect on the Purchaser’s ability to consummate the Contemplated Transactions. | 10Authorizations
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Unless otherwise defined in this Amendment, all other terms used in this Amendment which are defined in the Credit Agreement shall have the meanings assigned to such terms in the Credit Agreement. The interpretive provisions set forth in Section 1.02 of the Credit Agreement shall apply to this Amendment. | 29Definitions
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This Agreement shall be interpreted and administered in a manner so that any amount or benefit payable hereunder shall be paid or provided in a manner that is either exempt from or compliant with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended, and applicable Internal Revenue Service guidance and Treasury Regulations issued thereunder (and any applicable transition relief under Section 409A of the Code) (“ Section 409A of the Code ”). Nevertheless, the tax treatment of the benefits provided under the Agreement is not warranted or guaranteed. Neither the Company nor its directors, officers, employees or advisers, shall be held liable for any taxes, interest, penalties or other monetary amounts owed by Executive as a result of the application of Section 409A of the Code. | 46General
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This Amendment shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to its principles or rules of conflict of laws. | 47Governing Laws
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SKML and SKML Shareholders has full power, legal capacity and authority to authority enter into this Agreement, to execute all attendant documents and instruments necessary to consummate the transaction herein contemplated, to purchase and acquire the Common Shares from ASPZ and to perform all obligations hereunder. This Agreement constitutes the legal, valid or appropriate for the purpose of and binding obligation of SKML and SKML Shareholders and this Agreement is enforceable with respect to SKML and SKML Shareholders, in accordance with its terms. | 10Authorizations
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This Plan was adopted by the Board to be effective on the date the Plan is approved by the stockholders of the Company (the “ Effective Date ”). No Awards may be granted under this Plan on and after the tenth anniversary of the Effective Date; however, any Award granted prior to such termination date, and the authority of the Board or Committee to amend, alter, adjust, suspend, discontinue, or terminate any such Award or to waive any conditions or rights under such Award in accordance with the terms of this Plan, shall extend beyond such termination date until the final disposition of such Award. | 89Terms
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The Grantee as a Non-Employee Director is solely responsible for the satisfaction of all taxes and penalties that may arise in connection with the DSUs, and as such the Company has no withholding obligation associated with the DSUs. | 86Tax Withholdings
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Executive acknowledges that this Agreement is a full and accurate embodiment of the understanding between Executive and the Company, and that it supersedes any prior agreements or understandings made by the Parties, except the CIIAAA, which shall remain in full force and effect subsequent to the execution of this Agreement. This Agreement may only be amended in a writing signed by Executive and an authorized representative of Pandora. | 38Entire Agreements
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Each Plan, if any, to which Seller, Guarantor or its Subsidiaries make direct contributions, and, to the knowledge of Seller and Guarantor, each other Plan and each Multiemployer Plan, is in compliance in all material respects with, and has been administered in all material respects in compliance with, the applicable provisions of ERISA, the Code and any other federal or state law. | 39Erisa
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Except to the extent caused by the negligent acts or willful misconduct of Tenant or any of its agents, employees, contractors or representatives, Landlord shall indemnify, defend (through attorneys reasonably acceptable to Tenant) and hold harmless Tenant and its Affiliates, officers, directors, owners, members, agents and employees from and against all third party claims and associated lawsuits, damages, losses, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ fees actually incurred) arising or resulting from: (i) Landlord’s construction of the Landlord’s Work or any defects therein; (ii) any negligence or willful misconduct of Landlord or any of its agents, employees, contractors or representatives (including, without limitation, Contractor and Architect) occurring on the Premises during construction of Landlord’s Work or related to Landlord’s Work; or (iii) any dispute between Landlord and any contractor, subcontractor, supplier or other Person (excluding Tenant) related to the construction of the Landlord’s Work, including, but not limited to Contractor and Architect. | 49Indemnifications
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The Company hereby confirms that it will afford representatives of the Elliott Parties a reasonable opportunity to continue to engage in discussions with the Company. Subject to the foregoing, in addition, the Elliott Parties acknowledge and agree that the Company’s directors, Chief Executive Officer, Chief Financial Officer, Chief Legal Officer or investor relations personnel (the “ Contact Personnel ”) may engage in discussions with the Elliott Parties and their respective Affiliates subject to, and in accordance with, the terms of their fiduciary duties to the Company and the Company Policies (but without being limited by Company Policies to the extent they provide that management (rather than directors) shall be responsible for engaging in communications with external constituencies). The Company shall not adopt any new Company Policies that further restrict the ability of the Contact Personnel to engage in discussions with the Elliott Parties. Without limiting the foregoing and without limiting Elliott’s rights under paragraph 10, the Company may restrict the Contact Personnel and instruct them to refrain from disclosing to the Elliott Parties and their respective Affiliates (a) any information regarding the deliberations of the Board or its committees as a whole or of individual members of the Board or its committees or members of the Company’s management, (b) any confidential or proprietary information of any third party in the possession of the Company and its subsidiaries that either (i) is identified as such to the Contact Personnel by or on behalf of the Company or (ii) as to which it is reasonably apparent that the Company or any of its subsidiaries is obligated by a contractual, legal or fiduciary obligation prohibiting disclosure, (c) any legal advice provided by external or internal counsel to the Company or any of its subsidiaries or (d) any other information that may constitute a waiver of the Company’s or any of its subsidiaries’ attorney-client privilege or attorney work-product privilege (both with respect to internal or external legal counsel). The Elliott Parties hereby agree that any confidential or proprietary information of the Company that they or their Affiliates obtain in discussions contemplated by this paragraph 11 will be kept confidential and may be used solely for the purpose of monitoring and evaluating their investment in the Company. | 20Confidentiality
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You will be entitled to earn up to five (5) weeks of vacation per year, in addition to holidays observed by the Company. Vacation may be taken at such times and intervals as you shall determine, subject to the business needs of the Company. Vacation shall otherwise be subject to the policies of the Company, as in effect from time to time. | 93Vacations
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Executive will be entitled to paid vacation time each year during the term of this Agreement measured on a calendar year basis, in accordance with the Company’s customary practices, as well as sick leave, holidays and other paid absences in accordance with the Company’s policies and procedures for officers. Any unused paid time off during an annual period will be treated in accordance with the Company’s personnel policies as in effect from time to time. | 93Vacations
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THE PARTIES HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. THE PARTIES AGREE THAT ANY OF THEM MAY FILE A COPY OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED-FOR AGREEMENT AMONG THE PARTIES IRREVOCABLY TO WAIVE TRIAL BY JURY AND THAT ANY PROCEEDING WHATSOEVER BETWEEN THEM RELATING TO THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY SHALL INSTEAD BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY. | 96Waiver Of Jury Trials
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This Agreement may be executed in a number of identical counterparts which, taken together, shall constitute collectively one agreement; in making proof of this Agreement, it shall not be necessary to produce or account for more than one such counterpart with each party’s signature. Facsimile and/or electronic signature pages shall be effective for purposes of this Section 11.15. Handwritten signatures to this Agreement transmitted by telecopy or electronic transmission (for example, through use of a Portable Document Format or “PDF” file) shall be valid and effective to bind the party so signing. Each party agrees to promptly deliver to the other party an executed original of this Agreement with its actual signature, but a failure to do so shall not affect the enforceability of this Agreement, it being expressly agreed that each party to this Agreement shall be bound by its own telecopied or electronically transmitted handwritten signature and shall accept the telecopied or electronically transmitted handwritten signature of the other party to this Agreement. | 26Counterparts
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This Letter is confidential to the Parties and their representatives and is subject to the confidentiality agreement entered into between Buyer and Seller on which continues in full force and effect. | 20Confidentiality
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All modifications or amendments to this Agreement shall require the written consent of each of the signatories hereto. | 2Amendments
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Unless otherwise indicated herein, capitalized terms used and not otherwise defined in this Amendment or the Purchase and Sale Agreement are defined in Article I of the Receivables Financing Agreement, dated as of June 15, 2015 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “ Receivables Financing Agreement ”), among the Buyer, as borrower, NuStar Energy, as initial Servicer (in such capacity, the “ Servicer ”), the Persons from time to time party thereto as Lenders and as Group Agents, and PNC Bank, National Association, as Administrative Agent. | 29Definitions
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As consideration for the services of Executive hereunder, the Company shall pay Executive an annual base salary (the " Base Salary "), payable in accordance with the Company's customary payroll practices as in effect from time to time. The CEO shall perform an annual review of Executive's compensation based on Executive's performance of Executive's duties and the Company's other compensation policies, provided that Executive's Base Salary shall not be reduced without Executive's consent unless such reduction is part of a comparable overall reduction for members of senior management. The term Base Salary shall include any changes to the Base Salary from time to time. | 11Base Salary
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Immediately following the making of each Loan made on the Effective Date and after giving effect to the application of the proceeds of such Loans, (a) the fair value of the assets of the Borrower (on a consolidated basis with its Subsidiaries) will exceed its debts and liabilities, subordinate, contingent or otherwise; (b) the present fair saleable value of the property of the Borrower (on a consolidated basis with its Subsidiaries) will be greater than the amount that will be required to pay the probable liability of its debts and other liabilities, as such debts and other liabilities become absolute and matured; (c) the Borrower (on a consolidated basis with its Subsidiaries) will be able to pay its debts and liabilities, subordinate, contingent or otherwise as they become absolute and matured; and (d) the Borrower (on a consolidated basis with its Subsidiaries) will not have unreasonably small capital with which to conduct its business as such business is now conducted and is proposed to be conducted following the Effective Date. | 80Solvency
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(a) Unless previously terminated, the Revolving Facility Commitments of each Class shall automatically and permanently terminate on the applicable Revolving Facility Maturity Date for such Class. On the Closing Third Amendment Effective Date (after giving effect to the funding of the Initial 2017 Term B Loans to be made on such date), the Initial 2017 Term B Loan Commitments of each Term Lender as of the Closing Date will automatically and permanently terminate. On the Incremental Term B-1 Funding Date ( after giving effect to the funding of the Incremental Term B-1 Loans to be made on such date), the Incremental Term B-1 Commitments of each Incremental Term B-1 Lender as of the Incremental Term B-1 Funding Third Amendment Effective Date will automatically and permanently terminate. For the avoidance of doubt, on the 2015 Revolving Facility Third Amendment Effective Date, the Revolving Facility Commitments of each Revolving Facility Lender as in effect immediately prior to the occurrence of the 2015 Revolving Facility Third Amendment Effective Date were terminated in full. | 88Terminations
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This Agreement may be executed in one or more counterparts, all of which when taken together shall be considered one and the same agreement. In the event that any signature to this Agreement is delivered by facsimile or by e-mail delivery of a “.pdf” format file, such signature shall be deemed an original for all purposes and shall create a valid and binding obligation of the Party executing the same with the same force and effect as if such facsimile or “.pdf” format signature page was an original thereof. | 26Counterparts
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Subject to compliance with applicable securities laws, this Warrant, and the rights evidenced hereby, may be transferred by any registered holder hereof (a " Transferor" ). On the surrender for exchange of this Warrant, with the Transferor's endorsement in the form of Exhibit B attached hereto (the " Transferor Endorsement Form" ) and together with an opinion of counsel reasonably satisfactory to the Company that the transfer of this Warrant will be in compliance with applicable securities laws, the Company will issue and deliver to or on the order of the Transferor thereof a new Warrant or Warrants of like tenor, in the name of the Transferor and/or the transferee(s) specified in such Transferor Endorsement Form (each a " Transferee" ), calling in the aggregate on the face or faces thereof for the number of shares of Common Stock called for on the face or faces of the Warrant so surrendered by the Transferor. | 7Assignments
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Prior to the Expiration Date, the Exercise Price and the number of Warrant Shares purchasable upon the exercise of each Warrant are subject to adjustment from time to time upon the occurrence of any of the events enumerated in this Section 11. | 0Adjustments
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Borrowers shall have paid (i) to the Administrative Agent, Collateral Agent, Syndication Agent, Documentation Agent and Lenders, all fees and expenses due and owing pursuant to the Credit Documents and payable on the Closing Date (including the amounts due under the Fee Letter) and (ii) to the Joint Bookrunners, Agents and Lenders (each as defined in the Existing Credit Agreement) all fees (including commitment fees and Letter of Credit Fees (as defined in the Existing Credit Agreement)) and expenses, whether accrued or due and owing, under the Existing Credit Agreement. | 42Fees
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The target amount of Performance-Based Shares under this Award is One Hundred Seven Thousand Four Hundred Fifty (107,450) Performance-Based Shares (the “ Target Performance-Based Shares ”). Provided that (y) the Company’s EBITDA for the Measurement Period equals or exceeds the threshold amount as shown on the table set forth on the execution page hereof (the “ Execution Page ”), and (z) the Grantee is employed by the Company or an Affiliate on the date of filing of the Company’s Annual Report on Form 10-K with the Securities and Exchange Commission (“ SEC ”) for the Company’s fiscal year ending February 29, 2020, and subject to the other terms and conditions of this Agreement, the restrictions on the Performance-Based Shares covered by this Award shall lapse and such shares shall vest over a range from 50% to 200% of the Target Performance-Based Shares as shown on the table set forth on the Execution Page. Any fractional shares created by such vesting will be rounded down to the nearest whole share. | 95Vesting
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The Company shall pay or reimburse Executive up to $15,000 for reasonable attorneys’ or other professional fees and for any other expenses Executive incurs in connection with the preparation, negotiation, execution and delivery of this Agreement and the equity incentive agreements entered into in connection herewith. Such reimbursements shall be made within 10 days following presentation to the Company of appropriate invoices or other documentation for the amount of such fees and expenses. | 41Expenses
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As used in this Agreement, references to any “subsidiary” of a specified Person shall refer to an Affiliate controlled by such Person directly, or indirectly through one or more intermediaries, as such terms are used in and construed under Rule 405 under the Securities Act (which, for the avoidance of doubt, shall include the Company’s controlled joint ventures, including shared-controlled joint ventures). The Company’s subsidiaries, as of the date hereof, are listed on Exhibit 21.01 to the Company’s Annual Report on Form 10-K for the year ended December 31, 2016 and, except as Previously Disclosed (as defined in Section 3.1(k)) are the only subsidiaries, direct or indirect, of the Company as of the date hereof. All the issued and outstanding shares of each subsidiary’s capital stock have been duly authorized and validly issued, are fully paid and nonassessable, have been issued in compliance with all federal and state securities laws, were not issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities, and, except as set forth on Section 3.1(b) of the Disclosure Schedules or as Previously Disclosed, are owned by the Company or a Company subsidiary free and clear of all liens, encumbrances and equities and claims. | 83Subsidiaries
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Except with respect to a Registration Default, the parties hereto acknowledge that there would be no adequate remedy at law if the Issuers or the Guarantors fail to perform any of their obligations hereunder and that the Purchasers and the holders from time to time of the Registrable Securities may be irreparably harmed by any such failure, and accordingly agree that the Purchasers and such holders, in addition to any other remedy to which they may be entitled at law or in equity, shall be entitled to compel specific performance of the obligations of the Issuers or the Guarantors under this Agreement in accordance with the terms and conditions of this Agreement, in any court of the United States or any State thereof having jurisdiction. | 81Specific Performance
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This Agreement shall be governed by and construed in accordance with the laws of Taiwan without reference to the choice of law principles thereof. | 4Applicable Laws
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This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery by telecopier or electronic means, including by e-mail with a “pdf” copy attached, of an executed counterpart of a signature page to this Agreement shall be effective as delivery of an original executed counterpart of this Agreement. The Administrative Agent may also require that any such documents and signatures delivered by telecopier be confirmed by a hard copy signed original thereof; provided that the failure to request or deliver the same shall not limit the effectiveness of any document or signature delivered by telecopier or other electronic format. | 26Counterparts
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Each U.S. Loan Party (a) is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (b) is duly qualified to do business as a foreign entity and in good standing under the laws of each jurisdiction where such qualification is necessary except where the failure to be qualified could not be reasonably be expected to have a Material Adverse Effect, (c) has all requisite power and authority and the legal right to own, pledge, mortgage and operate its Property, to lease or sublease any Property it operates under lease or sublease and to conduct its business as now or currently proposed to be conducted, (d) is in compliance with all applicable Requirements of Law except (unless such failure relates to any Anti-Terrorism Laws, Anti-Money Laundering Laws, Anti-Corruption Laws or Sanctions, in which case it shall be in compliance in all respects) where the failure to be in compliance, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect and (e) has all necessary permits from or by, has made all necessary filings with, and has given all necessary notices to, each Governmental Authority having jurisdiction, to the extent required for such ownership, lease, sublease, operation, occupation or conduct of business, except where the failure to obtain such permits, make such filings or give such notices, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect. | 19Compliance With Laws
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This letter agreement will be governed by, and construed and enforced in accordance with, the laws of the Commonwealth of Massachusetts applicable to contracts made and to be performed therein, without giving effect to the principles thereof relating to the conflict of laws. | 47Governing Laws
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Neither Borrower nor any of its Subsidiaries is a party to any indenture, loan, or credit agreement, or to any lease or other agreement or instrument, or subject to any charter or corporate or other organizational restriction, in each case which could result in a Material Adverse Event. Neither Borrower nor any of its Subsidiaries is in default in any respect in the performance, observance, or fulfillment of any of the obligations, covenants, or conditions contained in any agreement or instrument material to its business to which it is a party which could result in a Material Adverse Event. | 1Agreements
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This Agreement may not be amended except by an instrument in writing signed by the parties hereto and, in the case of BH, with the approval of the Committee. | 2Amendments
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This Agreement may be terminated by any Purchaser, as to such Purchaser’s obligations hereunder only and without any effect whatsoever on the obligations between the Company and the other Purchasers, by written notice to the other parties, if the Closing has not been consummated on or before August 11, 2017; provided, however, that no such termination will affect the right of any party to sue for any breach by the other party (or parties). | 88Terminations
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In addition to the other terms and conditions of the Plan pursuant to which Awards may be granted, the Committee may impose on any Award or the exercise thereof, such additional terms and conditions, not inconsistent with the provisions of the Plan, as the Committee shall determine, including terms requiring forfeiture of Awards in the event of termination of Continuous Service by the Participant and, to the extent permissible under Sections 162(m) and 409A of the Code, terms permitting a Participant to make elections relating to his or her Award. The Committee shall retain full power and discretion to accelerate or waive, at any time, any term or condition of an Award that is not mandatory under the Plan; provided, however , that the Committee shall not have any discretion to accelerate or waive any term or condition of an Award (i) that is intended to qualify as Performance-Based Compensation if such discretion would cause the Award not to so qualify or (ii) that would cause the Participant to incur additional taxes under Section 409A of the Code. Except in cases in which the Committee is authorized to require other forms of consideration under the Plan, or to the extent other forms of consideration must be paid to satisfy the requirements of the Delaware General Corporation Law, no consideration other than services may be required for the grant of any Award. | 46General
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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, regardless of any investigation made by any such other party or on its behalf and notwithstanding that the Administrative Agent 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 is outstanding and unpaid 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 Commitments or the termination of this Agreement or any other Loan Document or any provision hereof or thereof. | 85Survival
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Borrower shall not, directly or indirectly, form or acquire any Subsidiary unless Borrower complies with the requirements of Section 7.13 . | 83Subsidiaries
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Any controversy or claim arising out of, or relating to, this Agreement, or the making, performance or interpretation thereof, shall be settled by arbitration in Denver, Colorado in accordance with the rules of the American Arbitration Association then existing, and judgment on the arbitration award may be entered in any court having jurisdiction over the subject matter of the controversy. The parties further agree that a restraining order, injunction, writ of possession and/or writ of attachment may be applied for from a court of competent jurisdiction by any party pending resolution of the dispute. The arbitrators selected shall be persons experienced in negotiating, making and consummating agreements of the type of this Agreement. | 6Arbitration
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No provision of this Agreement shall be modified, waived or discharged unless the modification, waiver or discharge is agreed in writing and signed by Executive and by an authorized officer of the Company (other than Executive). No waiver by either party of any breach of, or non-compliance with, any condition or provision of this Agreement by the other party shall be considered a waiver of any other condition or provision of the same condition or provision at another time. | 97Waivers
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Except would not reasonably be expected to result in, individually or in the aggregate, a Material Adverse Effect, Holdings, the Borrower and its Subsidiaries have timely filed all Federal and state and other tax returns and reports required to be filed under applicable Law, and have timely paid all Federal and state and other taxes, assessments, fees and other governmental charges (including satisfying their withholding tax obligations) levied or imposed on their properties, income or assets that have become due and payable, except those which are being contested in good faith by appropriate actions diligently conducted and for which adequate reserves (in the good faith judgment of management of Holdings, the Borrower or the Restricted Subsidiaries) have been provided in accordance with GAAP. | 87Taxes
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None of the execution, delivery or performance of this Agreement will: (a) violate any provision of the certificate of incorporation or by-laws of Number Holdings or any organizational documents of any of its Subsidiaries; (b) violate any provision of law, rule, regulation, injunction, judgment, order, decree, ruling, charge or other restriction of any Governmental Authority to which Number Holdings or any of its Subsidiaries is subject; or (c) violate, be in conflict with, constitute a default (upon notice, lapse of time or both) under, give rise to a right of termination or renegotiation under any material contract of Number Holdings or any of its Subsidiaries. | 61No Conflicts
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In addition to any amounts received by the Employee pursuant to Section 3, upon termination of the Employee's employment with the Company the Employee shall also be entitled to: (i) the Employee's accrued but unpaid Base Salary to the Termination Date and any employee benefits the Employee may be entitled to pursuant to the employee benefit plans of the Company; (ii) the unpaid portion of any bonus, if any, relating to the calendar year prior to the calendar year of the Employee's termination of employment, payable on the earlier of (x) thirty days after the approval by the Board of the consolidated financial statements of the Company, and (y) the date on which the Company pays annual bonuses to other similarly situated employees of the Company; (iii) reimbursement for all appropriate business expenses incurred by the Employee in connection with his or her employment by the Company in accordance with the policies of the Company as in effect from time to time that are incurred but not yet reimbursed to the Employee through the Termination Date; and (iv) in the event of a Qualifying Termination, payment for accrued unused vacation days, payable in accordance with Company policy. | 12Benefits
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The proceeds of the Loans and the Letters of Credit, shall be used for general corporate purposes of the Borrower and its Subsidiaries, including the financing of working capital needs, the repayment of Indebtedness of the Borrower and its Subsidiaries and acquisitions permitted by this Agreement. | 92Use Of Proceeds
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You agree not to make or authorize the making of any disparaging remarks, comments, or statements about the Company, including its present or former agents, employees, officers, or directors. The Company agrees not to make any disparaging remarks, comments, or statements about you and, as appropriate, will advise selected personnel to avoid disparaging comments about you. Before the Termination Date, nothing in this Agreement precludes you from discussing terms and conditions of employment or exercising rights protected under federal labor law. | 64Non-Disparagement
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The Participant shall make appropriate arrangements with the Company for satisfaction of any federal, state or local income tax withholding requirements, Social Security and other· employee tax or other requirements applicable to the granting, crediting, vesting or payment of benefits under the Plan; There shall be deducted from each payment made under the Plan or any other Compensation payable to the Participant (or Beneficiary) all taxes that are required to be withheld by the Company in respect to such payment or this Plan. To the extent permissible under Code Section 409A, the Company shall have the right to reduce any payment (or other Compensation) by the amount of cash sufficient to provide the amount of said taxes. | 99Withholdings
|
Borrowers, Guarantor and Lender acknowledge the accuracy of the Recitals set forth above and the parties hereby agree that the Recitals are a part of this Amendment. | 33Effective Dates
|
The authorized equity securities of each of the Credit Parties as of the Closing Date are as set forth on Schedule 3.4 . All issued and outstanding equity securities of each of the Credit Parties are duly authorized and validly issued, fully paid, nonassessable, free and clear of all Liens other than Permitted Liens and those in favor of Agent for the benefit of Agent and Lenders, and such equity securities were issued in compliance with all applicable Laws. | 16Capitalization
|
Schedule 5.16 sets forth all the Subsidiaries of Holdings at the Closing Date, the jurisdiction of their incorporation and the direct or indirect ownership interest of Holdings therein. | 83Subsidiaries
|
When a reference is made in this Plan Support Agreement to a Section, Exhibit, or Schedule, such reference shall be to a Section, Exhibit, or Schedule, respectively, of or attached to this Plan Support Agreement unless otherwise indicated. Unless the context of this Plan Support Agreement otherwise requires, (a) words using the singular or plural number also include the plural or singular number, respectively, (b) the terms “hereof,” “herein,” “hereby” and derivative or similar words refer to this entire Plan Support Agreement, (c) the words “include,” “includes” and “including” when used herein shall be deemed in each case to be followed by the words “without limitation,” and (d) the word “or” shall not be exclusive and shall be read to mean “and/or.” The Parties agree that they have been represented by legal counsel during the negotiation and execution of this Plan Support Agreement and, therefore, waive the application of any law, regulation, holding, or rule of construction providing that ambiguities in an agreement or other document shall be construed against the party drafting such agreement or document. | 55Interpretations
|
Each of the parties shall use its reasonable best efforts to fulfill or obtain the fulfillment of the conditions precedent to the consummation of the transactions contemplated hereby on a timely basis, including to execute such documents and perform such further acts (including, without limitation, obtaining any consents, exemptions, authorizations or other actions by, or giving any notices to, or making any filings with, any Governmental Authority or any other Person) as may be reasonably required or desirable to carry out or to perform the provisions of this Agreement. After the Closing Date, each party shall execute and deliver such further certificates, agreements and other documents and take such other actions as any other party may reasonably request to consummate or implement such transactions or to evidence such events or matters as contemplated hereby. | 45Further Assurances
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This Agreement may be modified or amended only by an amendment in writing signed by both parties. | 2Amendments
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Except as set forth on Schedule 3.1(a) , the Company has no direct or indirect Subsidiaries other than the Subsidiaries. The Company owns, directly or indirectly, all of the capital stock of the Bank or comparable equity interests of each Subsidiary, and such interests are, except as set forth on Schedule 3.1(a) , owned free and clear of any and all Liens, and all the issued and outstanding shares of capital stock or comparable equity interest of each Subsidiary are validly issued and are fully paid, non-assessable, and free of preemptive and similar rights to subscribe for or purchase securities. | 83Subsidiaries
|
No representation or warranty made by any Loan Party in this Agreement, the SNI Acquisition Agreement, or in any financial statement, report, certificate or any other document furnished to any Agent or any Lender in connection herewith or therewith, taken as a whole, contains any untrue statement of a material fact or omits to state any material fact necessary to make the statements herein or therein in light of the circumstances under which they were made, not misleading in any material respect as of the date such representation or warranty was made; provided that, with respect to financial estimates, projected financial information and other forward-looking information, Borrowers represent only that such information was prepared in good faith based upon assumptions believed by Borrowers to be reasonable at the time of preparation, it being understood that (i) such financial statements, projected financial information and forward-looking statements are not to be viewed as facts, that actual results during the period or periods covered thereby may differ from the projected results (and that such differences may be material) and (ii) no representation or warranty is made with respect to information of a general economic or industry-specific nature. There is no fact known to any Loan Party or which reasonably should be known to such Loan Party which such Loan Party has not disclosed to Agents in writing with respect to the Transactions which could reasonably be expected to have a Material Adverse Effect. | 31Disclosures
|
Except as provided below, if the Executive voluntarily terminates Continuous Service or if the Company terminates the Executive's Continuous Service during the Performance Period, in either case before a Change in Control, all Performance Shares will be immediately forfeited. If Executive remains in Continuous Service throughout the Performance Period, the Performance Shares shall vest and be earned as stated in Section 2.3 - 2.7 above based on the relative TSR of the Company. | 46General
|
The Company may withhold from any payments or benefits under this Agreement, including, but not limited to, any payments under Paragraphs 4(a), (c), (d), (e), and (f) of this Agreement, all federal, state, or local taxes or other amounts, as may be required pursuant to applicable law, government regulation, or ruling. | 99Withholdings
|
The Company has timely filed with the SEC all reports, schedules, forms, statements and other documents required to be filed by it with the SEC pursuant to the reporting requirements of the Securities Exchange Act of 1934, (the “‘34 Act”), all of the foregoing filed prior to the date hereof and all exhibits included therein and financial statements and schedules thereto and documents (other than exhibits to such documents) incorporated by reference therein (referred to herein as the “SEC Documents”). As of their respective dates, the SEC Documents complied in all material respects with the requirements of the ‘34 Act and the rules and regulations of the SEC promulgated thereunder applicable to the SEC Documents, and none of the SEC Documents, at the time they were filed with the SEC, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. None of the statements made in any such SEC Documents is, or has been, required to be amended or updated under applicable law (except for such statements as have been amended or updated in subsequent filings prior the date hereof). As of their respective dates, the financial statements of the Company included in the SEC Documents complied as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto. Such financial statements have been prepared in accordance with United States generally accepted accounting principles, consistently applied, during the periods involved and fairly present in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries as of the dates thereof and the consolidated results of their operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments). Except as set forth in the financial statements of the Company included in the SEC Documents, the Company has no liabilities, contingent or otherwise, other than (i) liabilities incurred in the ordinary course of business subsequent to June 30, 2017, and (ii) obligations under contracts and commitments incurred in the ordinary course of business and not required under generally accepted accounting principles to be reflected in such financial statements, which, individually or in the aggregate, are not material to the financial condition or operating results of the Company. The Company is subject to the reporting requirements of the ‘34 Act. | 43Financial Statements
|
The Transactions (a) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except such as have been obtained or made and are in full force and effect, (b) will not violate any applicable law or regulation or the charter, by-laws or other organizational documents of the Company or any Subsidiary or any order of any Governmental Authority, (c) will not violate or result in a default under any indenture, material agreement or other material instrument binding upon the Company or any Borrowing Subsidiary or its assets, or give rise to a right thereunder to require any payment to be made by the Company or any Borrowing Subsidiary, and (d) will not result in the creation or imposition of any Lien on any asset of the Company or any Borrowing Subsidiary. | 61No Conflicts
|
ReadyCap shall continue to maintain Fidelity Insurance in an aggregate amount at least equal to $2,000,000. Sutherland, Investment Manager and Guarantor shall continue to maintain Fidelity Insurance in an aggregate amount at least equal to $10,000,000. Each Borrower, Investment Manager and Guarantor shall maintain Fidelity Insurance in respect of its officers and employees, with respect to any claims made in connection with all or any portion of the Pledged Assets. Each Borrower, Investment Manager and Guarantor shall notify the Lender of any material change in the terms of any such Fidelity Insurance. | 51Insurances
|
All benefits under the Plan shall be forfeited by anyone who discloses confidential information to others outside of Ashland’s organization without the prior written consent of Ashland or who accepts, during a period of five (5) years following his or her retirement, any employment or consulting activity which is in direct conflict with the business of Ashland at such time. Such determination shall be made in the sole discretion of Ashland. A breach of this Section 8 shall result in an immediate forfeiture of benefits payable to any retiree under the Plan. | 20Confidentiality
|
At the time of and immediately after the Amendment No. 2 Effective Date and the making of the Extended Term Loans and the availability of the Extended Revolving Credit Commitments, no Default or Event of Default shall exist or would result from this Amendment or from the application of any proceeds therefrom. | 62No Defaults
|
If any contest or dispute arises between the parties with respect to this Agreement or Consultant’s engagement or termination thereof, other than injunctive and equitable relief with regard to Section 9 hereof, such contest or dispute shall be submitted to binding arbitration in San Diego, California in accordance with the rules and procedures of the Commercial Arbitration Rules and the expedited arbitration procedures of the American Arbitration Association (“ AAA ”) then in effect. The decision of the arbitrator shall be final and binding on the parties and may be entered in any court of applicable jurisdiction. The parties shall split the fees of AAA and the arbitrator, which fees shall be recoverable as costs by the prevailing party pursuant to Section 12.11. | 6Arbitration
|
The Borrower will not, nor will it permit any subsidiary (whether a consolidated subsidiary or an Excluded Consolidated Subsidiary) to, use any of the proceeds of the Advances to purchase or carry any “margin stock” (as defined in Regulation U). The Borrower will not request any Loan or Letter, and will not use, and the Borrower will ensure that its subsidiaries (including each consolidated subsidiary and each Excluded Consolidated Subsidiary) and its or their respective directors, officers, employees and agents shall not use, the proceeds of any Loan or Letter in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws. | 92Use Of Proceeds
|
All notices and other communications to the Guarantor shall be given as provided in the Indenture to the Guarantor, at the address set forth in the Indenture. | 65Notices
|
In the event of any conflict between the terms of this Amendment and the terms of the Agreement and any other amendment or addendum thereto with respect to the subject matter hereof, the terms of this Amendment No. 7 shall control. | 55Interpretations
|
This RSU Agreement constitutes the entire agreement and understanding between us, and supersedes any prior agreement or understanding, relating to the subject matter of this RSU Agreement. You agree, by accepting this RSU Agreement, that the terms hereof are separate from and independent of any employment agreement or severance or similar agreement by and between you and the Company and that any terms thereof which might otherwise affect the terms hereof shall be inapplicable to this RSU Agreement, except as otherwise expressly provided herein. | 38Entire Agreements
|
Effective as of the Effective Date, each Party does hereby forever release, discharge and acquit the other Party of and from any and all claims, demands, obligations, liabilities, indebtedness, responsibilities, disputes, breaches of contract, breaches of duty or any relationship, acts, omissions, cause or causes of action (whether at law or in equity), debts, sums of money, accounts, compensations, contracts, controversies, promises, damages, costs, rights of offset, losses and expenses, of every type, kind, nature, description or character (“ Claims ”), whatsoever arising out of the Management Agreement or any acts or omissions of the other Party to the Management Agreement, occurring at any time before or after the date hereof, which in any way arise out of, are connected with or relate to the Management Agreement. For the avoidance of doubt, this provision shall not release, discharge or acquit any Party from any Claim other than Claims arising under the Management Agreement. | 74Releases
|
During the Term and prior to the Spin-Off Date, Gehring shall continue to participate in all Company benefit plans, as in effect or amended from time to time, in which he participates as of the date of this Agreement, subject to the terms of such benefit plans; provided that Gehring will not be eligible for new equity grants in the fiscal year 2017 grant cycle. On and after the Spin-Off Date during the Term, except with respect to equity awards, Gehring shall cease active participation in the Company’s benefit plans (including The ConAgra Foods, Inc. Pension Plan for Salaried Employees) and shall be eligible to participate in all Lamb Weston benefit plans, as in effect or amended from time to time, in which officers of Lamb Weston participate. In connection with the spin off of Lamb Weston, the liabilities associated with Gehring’s accounts under the ConAgra Foods, Inc. Amended and Restated Non-Qualified CRISP Plan and the ConAgra Foods, Inc. Amended and Restated Voluntary Deferred Compensation Plan will not be transferred to Lamb Weston or any nonqualified deferred compensation plan of Lamb Weston. | 12Benefits
|
The Performance Share Units are restricted in that they may not be sold, transferred or otherwise alienated until the restrictions are removed or expire as described in Section 6 of this Agreement. The Performance Share Units are also restricted in the sense that they may be forfeited to the Company as provided in Section 6 (the “Forfeiture Restrictions”). | 44Forfeitures
|
This Agreement is governed by, and is to be construed and enforced in accordance with, the laws of the State of Florida without regard to principles of conflicts of laws. | 47Governing Laws
|
The Company and the Investors shall cooperate with each other and shall take such further action and shall execute and deliver such further documents as may be reasonably requested by any other party in order to carry out the provisions and purposes of this Agreement. The Investors agree that they shall not direct any Person to undermine or breach the terms and conditions set forth herein. | 45Further Assurances
|
This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to principles of conflicts of laws thereof or any other State. Any action brought by any party against any other party hereto concerning the transactions contemplated by this Agreement shall be brought only in the state courts of New York or in the federal courts located in the state and county of New York. The parties to this Agreement hereby irrevocably waive any objection to jurisdiction and venue of any action instituted hereunder and shall not assert any defense based on lack of jurisdiction or venue or based upon forum non conveniens. The parties executing this Agreement and other agreements referred to herein or delivered in connection herewith on behalf of the Company agree to submit to the in personam jurisdiction of such courts and hereby irrevocably waive trial by jury. The prevailing party shall be entitled to recover from the other party its reasonable attorney’s fees and costs. In the event that any provision of this Agreement or any other agreement delivered in connection herewith is invalid or unenforceable under any applicable statute or rule of law, then such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed modified to conform with such statute or rule of law. Any such provision which may prove invalid or unenforceable under any law shall not affect the validity or enforceability of any other provision of any agreement. Each party hereto hereby irrevocably waives personal service of process and consents to process being served in any suit, action or proceeding in connection with this Agreement or any other transaction document contemplated hereby by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law. | 47Governing Laws
|
The representations and warranties of the Loan Parties set forth in herein, in Article IV of the Credit Agreement and in the other Credit Documents are true and correct in all material respects (except to the extent that such representation and warranty is qualified by materiality, in which case such representation and warranty must be true in all respects) as if made on the July 2017 Amendment Effective Date, or if such representation speaks as of an earlier date, as of such earlier date, and no Default has occurred and is continuing. | 76Representations
|
This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement and the other Loan Documents constitute the entire contract between and among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Except as provided in Section 5.01 , this Agreement shall become effective when it shall have been executed by the Agent and when the Agent shall have received counterparts hereof which, when taken together, bear the signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby. 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. The words “execution,” “signed,” “signature,” and words of like import in this Agreement or any Loan Document shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act. | 26Counterparts
|
Schedule 3.13 sets forth a description of all insurance maintained by or on behalf of Level 3, the Borrower and the Material Subsidiaries of Level 3 as of the Effective Date. To the knowledge of Level 3, such insurance complies with the requirements of Section 5.07. | 51Insurances
|
The Borrower and each of its Material Subsidiaries maintains (either in the name of the Borrower or in such Material Subsidiary’s own name) insurance on its property in accordance with Section 6.6. | 51Insurances
|
The remedies provided for in this Article V are not exclusive and shall not limit any right or remedies which may otherwise be available to any indemnified person at law or in equity. The obligations of the parties to indemnify or make contribution under this Article V shall survive expiration or termination of this Agreement for the applicable limitation period. | 75Remedies
|
Facility ”: the Commitments and the Term Loans made hereunder B Loan”: as defined in Section 2.1 . | 89Terms
|
If Tenant is a corporation, limited liability company, trust, or partnership, Tenant and each individual executing this Lease on behalf of Tenant represent and warrant that each is duly authorized to execute and deliver this Lease on behalf of Tenant and shall concurrently with the execution and delivery of this Lease to Landlord deliver to Landlord evidence of such authority satisfactory to Landlord. | 9Authority
|
This Plan may be executed in several counterparts, each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument. | 26Counterparts
|
The prevailing party shall be awarded all costs and expenses of the proceeding, including, but not limited to, attorneys’ fees, filing and service fees, witness fees, and arbitrators’ fees. If arbitration is commenced, the arbitrator will have full authority and complete discretion to determine the “prevailing party” and the amount of costs and expenses to be awarded. | 41Expenses
|
As promptly as practicable after the date of this Agreement, the Seller shall make all filings with governmental authorities required to consummate the transactions contemplated hereby, and will cooperate with the Buyer with respect to all filings that the Buyer elects to make or that are required to consummate the transactions contemplated hereby. Between the date of this Agreement and the Closing Date, the Seller and the Buyer shall, use commercially reasonable efforts to obtain the Seller Required Consents identified in Section 3.5 of the Disclosure Schedule and the Buyer Required Consents identified in Schedule 4.3 , as applicable, and any other authorization, consent, approval or waiver of any other Person whose authorization, consent, approval or waiver shall be required for the consummation of the transactions contemplated by this Agreement and the Transaction Documents or for the conduct of the Business by the Buyers immediately after giving effect to the Closing. The Seller, on the one hand, and the Buyer, on the other hand, shall cooperate, to the extent reasonably requested by the other, in connection with the foregoing. | 5Approvals
|
Employee shall be entitled to participate in all fringe benefit programs, including health insurance, vision insurance, dental insurance, life insurance, accident insurance and short and long term disability insurance, as well as any other similar insurance programs offered by Employer to individuals employed in executive positions. It is specifically acknowledged by the Parties that the premiums for the family health and medical insurance to be provided to Employee shall be paid for in full by the Employer. | 51Insurances
|
During the Employment Period, the Executive shall be entitled to participate in employee benefit plans generally made available to senior executives of the Company and the Parent, subject to the terms of such plans; provided, however, that nothing contained herein shall require the establishment or continuation of any particular plan or program. In addition, for each year during the Employment Period and subject to Executive providing proper documentation to the Company, the Executive shall be entitled to reimbursements for financial planning and tax preparation fees in an amount not to exceed $15,000 per calendar year. The car allowance which the Executive has been receiving as President & Chief Operating Officer will be discontinued as of the Effective Date. | 12Benefits
|
This Agreement will be construed and enforced in accordance with the laws of the State of Texas, without regard to the principles of conflicts of law thereof. | 47Governing Laws
|
Participant hereby acknowledges that he or she has read and understood the terms regarding collection, processing and transfer of Data contained in Section 10 of the Agreement and, by accepting the Restricted Stock Units, Participant agrees to such terms. In this regard, upon request of the Company or the Employer, Participant agrees to provide an executed data privacy consent form to the Employer or the Company, or any other agreements or consents that the Company and/or the Employer may deem necessary to obtain Participant's consent to collect, process or transfer Participant's Data for purposes of administering his or her participation in the Plan under the data privacy laws in Russia, either now or in the future. Participant understands that he or she will not be able to participate in the Plan if he or she fails to execute any such consent or agreement. | 22Consents
|
This Refinancing Amendment, the Credit Agreement and the other Loan Documents constitute the entire agreement among the parties with respect to the subject matter hereof and thereof and supersede all other prior agreements and understandings, both written and verbal, among the parties or any of them with respect to the subject matter hereof. | 38Entire Agreements
|
At any time prior to the Closing, either Party may extend the time for the performance of any of the covenants, obligations or other acts of the other Party or (b) waive any inaccuracy of any representations or warranties or compliance with any of the agreements, covenants or conditions of the other Party or any conditions to its own obligations. Any agreement on the part of a Party to any such extension or waiver will be valid only if such waiver is set forth in an instrument in writing signed on its behalf by its duly authorized officer. The failure of any party to this Agreement to assert any of its rights under this Agreement or otherwise will not constitute a waiver of such rights. The waiver of any such right with respect to particular facts and other circumstances will not be deemed a waiver with respect to any other facts and circumstances, and each such right will be deemed an ongoing right that may be asserted at any time and from time to time. | 97Waivers
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