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All communications and notices hereunder shall be in writing and given in the manner provided in Section 9.1 of the Credit Agreement. All communications and notices to any Intercompany Lender or Intercompany Debtor, in each case other than Parent or the Borrower, shall be given to it in care of Parent in the manner provided in Section 9.1 of the Credit Agreement. | 65Notices
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The provisions of this Agreement shall be severable in the event that any of the provisions hereof (including any provision within a single section, paragraph or sentence) are held by a court of competent jurisdiction or a properly empaneled arbitrator to be invalid, void or otherwise unenforceable, and the remaining provisions shall remain enforceable to the fullest extent permitted by law. Furthermore, to the fullest extent possible, the provisions of this Agreement (including, without limitations, each portion of this Agreement containing any provision held to be invalid, void or otherwise unenforceable, which is not itself invalid, void or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable. | 79Severability
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If any provision of this Waiver is prohibited by law or otherwise determined to be invalid or unenforceable by a court of competent jurisdiction, the provision that would otherwise be prohibited, invalid or unenforceable shall be deemed amended to apply to the broadest extent that it would be valid and enforceable, and the invalidity or unenforceability of such provision shall not affect the validity of the remaining provisions of this Waiver so long as this Waiver as so modified continues to express, without material change, the original intentions of the parties as to the subject matter hereof and the prohibited nature, invalidity or unenforceability of the provision(s) in question does not substantially impair the respective expectations or reciprocal obligations of the parties or the practical realization of the benefits that would otherwise be conferred upon the parties. The parties will endeavor in good faith negotiations to replace the prohibited, invalid or unenforceable provision(s) with a valid provision(s), the effect of which comes as close as possible to that of the prohibited, invalid or unenforceable provision(s). | 79Severability
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There are no actions, suits, proceedings or investigations pending or, to the knowledge of Source, threatened against Source, or affecting Source or its properties, at law or in equity, before any court or other governmental agency or instrumentality, domestic or foreign, or before any arbitrator of any kind. Source is not in default with respect to any judgment, order, writ, injunction, decree, award, rule or regulation of any court, arbitrator, or governmental agency or instrumentality. | 58Litigations
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The Borrower and Guarantors will (a) keep, and cause each of their respective Subsidiaries to keep true and accurate records and books of account in which full, true and correct entries will be made in accordance with GAAP and (b) maintain adequate accounts and reserves for all taxes (including income taxes), depreciation and amortization of its properties and the properties of their respective Subsidiaries, contingencies and other reserves, in each case, in all material respects. Neither Borrower, any Guarantor nor any of their respective Subsidiaries shall, without the prior written consent of the Agent, not to be unreasonably withheld (x) except as required by GAAP, make any material change to the accounting policies/principles used by such Person in preparing the financial statements and other information described in §6.4 or §7.4, or (y) change its fiscal year. Agent and the Lenders acknowledge that Borrower’s fiscal year is a calendar year. In the event that the Borrower, any Guarantor or any of their respective Subsidiaries makes any change in the accounting policies/principles used by such Person, Borrower shall give prompt written notice thereof to Agent, which notice shall reasonably describe such change and any potential impact on the calculation of any financial covenant in this Agreement. | 73Records
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Subtenant shall not assign, sublease, mortgage, pledge or hypothecate its subleasehold interest or any part thereof, whether by operation of law or otherwise, without the prior written approval of Sublandlord, which approval shall not be unreasonably withheld, conditioned or delayed. Any purported assignment, sublease or other pledge or conveyance in violation of this provision shall be null, void and of no legal effect. The merger of Subtenant with any other entity or the transfer of any controlling or managing ownership or beneficial interest in Subtenant, or the assignment of a substantial portion of the assets of Subtenant, whether or not located at the Premises, shall not constitute an assignment hereunder. | 7Assignments
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To the fullest extent permissible under the Act, the Company shall indemnify, defend, and hold harmless any Person who was or is a party defendant or is threatened to be made a party defendant to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, or investigative (other than an action by or in the right of the Company) by reason of the fact that he or she is or was a Member, Manager, or officer of the Company, against all losses, liabilities, damages, and expenses, including attorney’s fees, judgments, fines and amounts paid in settlement, actually and reasonably incurred by the indemnified party in connection with such action, suit or proceeding. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not in itself create a presumption that the person did not act in good faith and in a manner which he or she reasonably believed to be in the best interest of the Company, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his or her conduct was unlawful. | 49Indemnifications
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TO THE MAXIMUM EXTENT PERMITTED BY LAW, I HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN CONNECTION WITH ANY LITIGATION ARISING OUT OF, UNDER, IN CONNECTION WITH, OR IN ANY WAY RELATED TO THIS AGREEMENT. THIS INCLUDES, WITHOUT LIMITATION, ANY LITIGATION CONCERNING ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENT (WHETHER VERBAL OR WRITTEN), OR ACTION OF THE COMPANY OR ME, OR ANY EXERCISE BY THE COMPANY OR ME OF OUR RESPECTIVE RIGHTS UNDER THIS AGREEMENT OR IN ANY WAY RELATING TO THIS AGREEMENT. I FURTHER ACKNOWLEDGE THAT THIS WAIVER IS A MATERIAL INDUCEMENT FOR THE COMPANY TO ISSUE AND ACCEPT THIS AGREEMENT . | 96Waiver Of Jury Trials
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Sections 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20 and Attachment A of this Agreement shall survive termination of this Agreement. | 85Survival
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Each Buyer and in the event of assignment by Buyer of its rights and obligations hereunder, each holder of Securities, shall have all rights and remedies set forth in the Transaction Documents and all rights and remedies which such holders have been granted at any time under any other agreement or contract and all of the rights which such holders have under any law. Any Person having any rights under any provision of this Agreement shall be entitled to enforce such rights specifically (without posting a bond or other security), to recover damages by reason of any breach of any provision of this Agreement and to exercise all other rights granted by law. Furthermore, the Company recognizes that in the event that it fails to perform, observe, or discharge any or all of its obligations under the Transaction Documents, any remedy at law would inadequate relief to the Buyers. The Company therefore agrees that the Buyers shall be entitled to specific performance and/or temporary, preliminary and permanent injunctive or other equitable relief from any court of competent jurisdiction in any such case without the necessity of proving actual damages and without posting a bond or other security. The remedies provided in this Agreement and the other Transaction Documents shall be cumulative and in addition to all other remedies available under this Agreement and the other Transaction Documents, at law or in equity (including a decree of specific performance and/or other injunctive relief). | 75Remedies
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Each Participant shall be indemnified by such Participant’s Participating Employer against claims arising in connection with such Participant’s status as an employee, officer, director or agent of the Company or any Affiliate in accordance with the Company’s and the Participating Employer’s indemnity policies, subject to applicable law. | 50Indemnity
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The warranties and representations contained in this Agreement shall be true and correct in all material respects on the Closing Date with the same effect as though made on and as of that date. | 98Warranties
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Except as otherwise provided in the Plan, no amendment of this Agreement shall be valid or binding upon the parties unless the amendment is in writing and signed by the parties. | 2Amendments
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In relation to any legal action or proceedings arising out of or in connection with this Indenture, the Notes and the Guarantees, the Trustee and the Collateral Trustee (in the case of clauses (a) and (b) below only), the Issuers and each Guarantor that is organized under laws other than the United States or a state thereof (a) irrevocably submits to the jurisdiction of the federal and state courts in the Borough of Manhattan in the City, County and State of New York, United States, (b) consents that any such action or proceeding may be brought in such courts and waives any objection that it may now or hereafter have to the venue of any such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agree not to plead or claim the same, (c) designates and appoints Toys “R” Us, Inc., One Geoffrey Way, Wayne, NJ 07470 as its authorized agent upon which process may be served in any such action or proceeding that may be instituted in any such court and (d) agrees that service of any process, summons, notice or document by U.S. registered mail addressed to such agent for service of process, with written notice of said service to such Person at the address of the agent for service of process set forth in clause (c) of this Section 14.17 shall be effective service of process for any such action or proceeding brought in any such court. . | 21Consent To Jurisdiction
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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 Purchasers, severally and not jointly, agree to purchase, up to an aggregate of 5,500,000 Shares. Settlement for the Shares shall occur via Deposit/Withdrawal At Custodian (“DWAC”). On the Closing Date, following written confirmation of the Transfer Agent of initialization of DWAC transfers to each Purchaser of its respective Shares in book entry form to the account specified by each Purchaser, each Purchaser’s Subscription Amount as set forth on the signature page hereto executed by such Purchaser shall be delivered to the Company via wire transfer to the account specified by the Company. The Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the Closing shall occur at the offices of Fenwick & West LLP or such other location as the parties shall mutually agree. | 18Closings
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To Seller’s knowledge, the execution, delivery and performance of this Agreement and any of the Seller Documents by Seller do not and will not violate any restriction to which Seller is subject or, with or without the giving of notice, the passage of time, or both, violate (or give rise to any right of termination, cancellation or acceleration under) any mortgage, deed of trust, license, lease, indenture or other material agreement or instrument, whether oral or written, to which Seller is a party, or by which it or any of the Property are bound, which will not be fully satisfied, assigned or terminated on or prior to Closing as a result of the transactions contemplated in this Agreement, or result in the termination of any such instrument or termination of any provisions in such instruments, or result in the creation or imposition of any lien, charge or encumbrance upon any of the Property. | 62No Defaults
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The Company shall use the proceeds from the sale of the Securities for general corporate purposes, research and development, key personnel recruiting and business development purposes. | 92Use Of Proceeds
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The termination or expiration of this Agreement shall not affect any payment of any debts or obligations accruing prior to or after such date of termination or expiration. The provisions of Section 1 (to the extent necessary to give effect to the surviving provisions), Section 2.3 (Grantback License), Sections 2.6.1, 2.6.2, and 2.6.4.2(b) ([***] Grant-Back licenses becoming irrevocable), Section 9.6 (with respect to any Net Sales accrued following the Term during a permitted sell-off period under Section 14.3.1.2 ), Section 9.8.2 (for any final reports and final payments), Section 9.8.3 (Records and Audits), Section 11.1 (Confidentiality except for the last Sentence of Section 11.1.2 ), Section 13 (Indemnification, Liability and Insurance), Section 14 (until completion of termination obligations) and Section 15 (Miscellaneous) will survive the expiration or any termination of this Agreement for any reason, in accordance with their respective terms and conditions, and for the respective duration stated therein, and where no duration is stated, will survive indefinitely. In addition, any Section that is referred to in the above listed Sections shall survive solely for the interpretation or enforcement of the latters. | 85Survival
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In consideration of employment by the Company and Executive’s receipt of the salary and other benefits associated with Executive’s employment, and in acknowledgment that (a) the Company is engaged in the waste glycol recycling business, (b) maintains secret and confidential information, (c) during the course of Executive’s employment by the Company such secret or confidential information may become known to Executive, and (d) full protection of the Company’s business makes it essential that no employee appropriate for his or her own use, or disclose such secret or confidential information, Executive agrees that during the time of Executive’s employment and for a period of two (2) years following the termination of Executive’s employment with the Company, Executive agrees to hold in strict confidence and shall not, directly or indirectly, disclose or reveal to any person, or use for his own personal benefit or for the benefit of anyone else, any trade secrets, confidential dealings, or other confidential or proprietary information of any kind, nature, or description (whether or not acquired, learned, obtained, or developed by Executive alone or in conjunction with others) belonging to or concerning the Company or any of its subsidiaries, except (i) with the prior written consent of the Company duly authorized by its Board, (ii) in the course of the proper performance of Executive’s duties hereunder, (iii) for information (x) that becomes generally available to the public other than as a result of unauthorized disclosure by Executive or his affiliates or (y) that becomes available to Executive on a non-confidential basis from a source other than the Company or its subsidiaries who is not bound by a duty of confidentiality, or other contractual, legal, or fiduciary obligation, to the Company, or (iv) as required by applicable law or legal process. | 20Confidentiality
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This Fourth Amendment sets forth the entire agreement between the parties with respect to the matters set forth herein. There have been no additional oral or written representations or agreements. Except as modified in this Fourth Amendment, all terms and conditions of the Agreement shall remain in full force and effect. In the event of any conflict between the terms and conditions of the Agreement and this Fourth Amendment, this Fourth Amendment shall govern. | 38Entire Agreements
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Each Loan Party 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, except (a) Taxes that are being contested in good faith by appropriate proceedings and for which such Loan Party or such Restricted Subsidiary, as applicable, has set aside on its books adequate reserves or (b) to the extent that the failure to do so could not be expected to result in a Material Adverse Effect. As of the Effective Date, no material tax liens have been filed and no material claims are being asserted with respect to any such taxes. | 87Taxes
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If any provision of this Agreement shall be held invalid under any applicable Laws, such invalidity shall not affect any other provision of this Agreement that can be given effect without the invalid provision, and, to this end, the provisions hereof are severable. | 79Severability
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Borrower is in compliance in all material respects with all applicable provisions of the Employees Retirement Income Security Act of 1974 (“ERISA”) and all other laws, state or federal, applicable to any employees’ retirement plan maintained or established by it. | 39Erisa
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This Agreement and the rights granted herein will be binding upon, and will inure to the benefit of SELTEN and VIVUS, and their respective lawful successors and permitted assigns. | 13Binding Effects
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This Agreement may be executed in counterparts, each of which when signed by the Company or the Optionee will be deemed an original and all of which together will be deemed the same agreement. | 26Counterparts
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The prevailing Party, as determined by the arbitrators, shall be entitled to (a) its share of fees and expenses of the arbitrators and (b) its reasonable attorneys’ fees and associated costs and expenses. In determining which Party “prevailed,” the arbitrators shall consider (i) the significance, including the financial impact, of the claims prevailed upon and (ii) the scope of claims prevailed upon, in comparison to the total scope of the claims at issue. If the arbitrators determine that, given the scope of the arbitration, neither Party “prevailed,” the arbitrators shall order that the Parties (1) share equally the fees and expenses of the arbitrators and (2) bear their own attorneys’ fees and associated costs and expenses. | 25Costs
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In the event that the Employee is made a party or threaten ed to be made a party to any action, suit, or proceeding, whether civil, criminal, administrative, or investigative, by reason of the fact that he is or was a Director or officer of the Parent or Employer, or while a director or officer of the Parent or Em ployer is or was serving at the request of the Parent or Employer as a Director, officer, employee, or agent of another corporation or of a partnership, joint venture, trust or other enterprise, the Employee shall be indemnified and held harmless by the Pa rent and Employer to the fullest extent permitted under applicable law and the Parent’s bylaws, and as specifically set forth in the Parent’s bylaws, as the same exist or may hereafter be amended by Parent . | 49Indemnifications
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The Company shall use the net proceeds from the sale of the Note hereunder for general working capital purposes, which may include acquisitions. | 92Use Of Proceeds
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EACH GRANTOR AND, BY ACCEPTANCE OF THE BENEFITS HEREOF, COLLATERAL AGENT AND EACH SECURED PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER NOTE DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN. | 96Waiver Of Jury Trials
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This Agreement shall be governed by the laws of the State of Delaware, excluding any conflicts-of-law rule or principle that might refer the construction or interpretation of this Agreement to the laws of another state. Subject to Section 11.3 , the Parties agree to the exclusive venue of the federal or state courts located in the State of Delaware for the adjudication of all disputes arising out of this Agreement. | 47Governing Laws
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Each Loan Party will, and will cause each Subsidiary to, (a) except (other than in the case of the preservation of the legal existence of any Borrower) where the failure to do so could not reasonably be expected to result in a Material Adverse Effect, do or cause to be done all things necessary to preserve, renew and keep in full force and effect its legal existence and the rights, qualifications, licenses, permits, franchises, governmental authorizations, intellectual property rights, licenses and permits material to the conduct of its business, and maintain all requisite authority to conduct its business in each jurisdiction in which its business is conducted, provided that the foregoing shall not prohibit any merger, amalgamation, consolidation, liquidation or dissolution permitted under Section 6.03 , and (b) carry on and conduct its business in substantially the same manner and in substantially the same fields of enterprise as it is presently conducted. | 40Existence
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In consideration of Executive’s service to the Company, its promise to arbitrate all employment related disputes and Executive’s receipt of the compensation, pay raises and other benefits paid to Executive by the Company, at present and in the future, Executive agrees that any and all controversies, claims, or disputes with anyone (including the Company and any employee, officer, director, shareholder or benefit plan of the Company in their capacity as such or otherwise) arising out of, relating to, or resulting from Executive’s service to the Company under the Agreement or otherwise or the termination of Executive’s service with the Company, including any breach of this Agreement, shall be subject to binding arbitration under the Arbitration Rules set forth in California Code of Civil Procedure Section 1280 through 1294.2, including Section 1283.05 (the “ Rules ”) and pursuant to California law. Disputes which Executive agrees to arbitrate, and thereby agrees to wave any right to a trial by jury, include any statutory claims under state or federal law, including, but not limited to, claims under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, the age Discrimination in Employment Act of 1967, the Older Workers Benefit Protection Act, the California Fair Employment and Housing Act, the California Labor Code, claims of harassment, discrimination or wrongful termination and any statutory claims. Executive further understands that this Agreement to arbitrate also applies to any disputes that the Company may have with Executive. | 46General
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All payments made pursuant to this Note shall be made by check or wire transfer of immediately available funds and in lawful money of the United States of America to Seller at the address for notices pursuant to Section 5.4 below or at such other place as Seller may designate. Any payment on this Note shall be applied first to accrued interest, then to other amounts owing hereunder, and thereafter to the outstanding principal balance hereof. | 68Payments
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No part of the proceeds of the DIP Loans has been used, directly for any payment to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage in violation of any Anti-Corruption Law, as in effect on the date of the making of such representation and warranty. | 3Anti-Corruption Laws
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The execution, delivery and performance by the Company of this Agreement and the transactions contemplated pursuant to the Prospectus Supplement and the Transaction Documents, the issuance and sale of the Securities and the consummation by it of the transactions contemplated hereby and thereby to which it is a party do not and will not (i) conflict with or violate any provision of the Company’s or any Subsidiary’s certificate or articles of incorporation, bylaws or other organizational or charter documents, or (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, result in the creation of any Lien upon any of the properties or assets of the Company or any Subsidiary, or give to others any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument (evidencing a Company or Subsidiary debt or otherwise) or other understanding to which the Company or any Subsidiary is a party or by which any property or asset of the Company or any Subsidiary is bound or affected, or (iii) subject to the Required Approvals, conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Company or a Subsidiary is subject (including federal and state securities laws and regulations), or by which any property or asset of the Company or a Subsidiary is bound or affected; except in the case of each of clauses (ii) and (iii), such as could not have or reasonably be expected to result in a Material Adverse Effect. | 61No Conflicts
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No term or condition of this Agreement shall be deemed to have been waived except by a statement in writing signed by the party against whom the enforcement of the waiver is sought. The waiver by the Bank of the breach or nonperformance of any provision of this Agreement by Employee will not operate or be construed as a waiver of any future breach or nonperformance under any such provision of this Agreement or any similar agreement with any other employee. | 97Waivers
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In addition to such other rights of indemnification as they may have as members of the Board or as Officers or Employees of the Company or a Related Entity, members of the Board and any Officers or Employees of the Company or a Related Entity to whom authority to act for the Board, the Administrator or the Company is delegated shall be defended and indemnified by the Company to the extent permitted by law on an after-tax basis against all reasonable expenses, including attorneys’ fees, actually and necessarily incurred in connection with the defense of any claim, investigation, action, suit or proceeding, or in connection with any appeal therein, to which they or any of them may be a party by reason of any action taken or failure to act under or in connection with the Plan, or any Award granted hereunder, and against all amounts paid by them in settlement thereof (provided such settlement is approved by the Company) or paid by them in satisfaction of a judgment in any such claim, investigation, action, suit or proceeding, except in relation to matters as to which it shall be adjudged in such claim, investigation, action, suit or proceeding that such person is liable for gross negligence, bad faith or intentional misconduct; provided, however, that within thirty (30) days after the institution of such claim, investigation, action, suit or proceeding, such person shall offer to the Company, in writing, the opportunity at the Company’s expense to defend the same. To the extent required by Applicable Laws, the payment of expenses incurred in advance of the final disposition of a proceeding shall be made only upon delivery to the Company of an undertaking by or on behalf of the individual to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the Company. | 49Indemnifications
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THIS AGREEMENT AND EACH OTHER LOAN DOCUMENT SHALL BE GOVERNED BY, CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF, BUT INCLUDING SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW. SECTIONS 11.15 AND 11.16 OF THE CREDIT AGREEMENT ARE HEREBY INCORPORATED BY REFERENCE INTO THIS AGREEMENT MUTATIS MUTANDIS AND SHALL APPLY HERETO. | 47Governing Laws
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During Executive’s employment, and for a period of two (2) years thereafter, Executive covenants and agrees that Executive shall not engage in any pattern of conduct that involves the making or publishing of written or oral statements or remarks (including, without limitation, the repetition or distribution of derogatory rumors, allegations, negative reports or comments) which are disparaging, deleterious or damaging to the integrity, reputation or good will of the Company, its management, or of management of corporations or other entities affiliated with the Company. | 64Non-Disparagement
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Each of Seller and Keane, jointly and severally, shall indemnify, defend and hold harmless the Escrow Agent from and against any and all loss, liability, cost, damage and expense, including, without limitation, reasonable attorneys’ fees and expenses or other reasonable professional fees and expenses which the Escrow Agent may suffer or incur by reason of any action, claim or proceeding brought against the Escrow Agent, arising out of this Escrow Agreement, or the performance by the Escrow Agent of its obligations hereunder, unless such loss, liability, cost, damage or expense shall have been due to the bad faith, fraud, willful misconduct or gross negligence of the Escrow Agent; provided , that, as between Seller and Keane, neither Seller and Keane shall be liable for more than 50% of any such indemnification amounts. The provisions of this Section 3.1 shall survive the resignation or removal of the Escrow Agent and the termination of this Escrow Agreement. | 49Indemnifications
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Pay when due all taxes, assessments and governmental charges imposed upon it or any of its properties or that it is required to withhold and pay over, except where contested in good faith and where adequate reserves have been set aside to the extent required under GAAP. | 87Taxes
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Any Lender may at any time, without the consent of, or notice to, the Borrower or the Administrative Agent, sell participations to any Person (other than a natural Person, (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural Person, or the Borrower or any of the Borrower’s Subsidiaries or Affiliates) (each, a “ Participant ”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent, the Issuing Lender and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. For the avoidance of doubt, each Lender shall be responsible for the indemnity under Section 11.03(c) with respect to any payments made by such Lender to its Participant(s). | 67Participations
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Each party hereto hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Guaranty Agreement or any other Loan Document in any court referred to in Section 28 hereof. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court. | 94Venues
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EACH OF THE PARTIES HERETO HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. NEITHER PARTY IS WAIVING ITS RIGHT TO PROCEED WITH A BENCH TRIAL. EACH OF THE PARTIES HERETO HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 11.10 . | 96Waiver Of Jury Trials
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This Release may be executed by the parties hereto in counterparts, which taken together shall be deemed one original. | 26Counterparts
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This Third Amendment contains the entire agreement of the parties with respect to the subject matter of the Third Amendment and supersedes any agreements, oral or written, that relate to the subject matter hereof, except that this Third Amendment does not affect the rights and obligations of the Employment Agreement except as specifically amended by this Third Amendment. For the avoidance of doubt, Company’s obligation to make the Severance Payment, and the requirement that Executive execute the release agreement required by Section IV(D)(3), continues to apply. This Third Amendment may be executed in one or more counterparts, all of which together shall constitute a single instrument. | 38Entire Agreements
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This Amendment shall be governed by, and construed in accordance with, the law of the State of New York, without giving effect to any conflict of law principles (but giving effect to federal laws relating to national banks). | 47Governing Laws
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(a) Keep its insurable properties adequately insured at all times by financially sound and reputable insurers; maintain such other insurance, to such extent and against such risks, including fire and other risks insured against by extended coverage, as is customary with companies in the same or similar businesses operating in the same or similar locations, including comprehensive general liability insurance against claims for bodily injury or death or property damage occurring upon, in, about or in connection with the use of any properties owned, occupied or controlled by it; and maintain such other insurance as may be required by law. | 51Insurances
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This Agreement constitutes the entire agreement of the parties hereto and supersedes in their entirety all prior representations, understandings, undertakings or agreements (whether oral or written and whether expressed or implied) of the parties with respect to the subject matter hereof (including, for the avoidance of doubt, any change of control agreement entered into by the parties hereto prior to the effective date of this Agreement). | 38Entire Agreements
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The Loan Parties have disclosed to the Lenders all agreements, instruments and corporate or other restrictions to which any Loan Party or any Subsidiary is subject, and all other matters known to it, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect. None of the reports, financial statements, certificates or other information furnished by or on behalf of any Loan Party or any Subsidiary to the Administrative Agent or any Lender in connection with the negotiation of this Agreement or any other Loan Document (as modified or supplemented by other information so furnished) contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that, with respect to projected financial information, the Loan Parties represent only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time delivered and, if such projected financial information was delivered prior to the Effective Date, as of the Effective Date (it being understood that projections are subject to inherent uncertainties and contingencies which may be outside the control of any Loan Party). | 31Disclosures
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This Mortgage is intended to be performed in the State of Texas and the substantive Law of such State and or the United States of America shall govern the validity, construction, enforcement and interpretation of this Mortgage, unless otherwise specified herein, except that the Laws of the State of New Mexico shall govern with respect to procedural and substantive matters relating to the creation, perfection and enforcement of the Liens and other rights and remedies of the Mortgagee granted herein. | 47Governing Laws
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This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, assigns and legal representatives. | 7Assignments
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Maintain insurance with financially sound and reputable insurance companies against at least such risks and in at least such amounts as are customarily maintained by similar businesses and as may be required by Applicable Law and as are required by any Security Documents (including, without limitation, hazard and business interruption insurance). All such insurance shall, (a) provide that no cancellation or material modification thereof shall be effective until at least 30 days after receipt by the Administrative Agent of written notice thereof, (b) name the Administrative Agent as an additional insured party thereunder and (c) in the case of each casualty insurance policy, name the Administrative Agent as lender’s loss payee. On the Closing Date and from time to time thereafter deliver to the Administrative Agent upon its request information in reasonable detail as to the insurance then in effect, stating the names of the insurance companies, the amounts and rates of the insurance, the dates of the expiration thereof and the properties and risks covered thereby. | 51Insurances
|
This Guaranty and all of the other Program Documents executed and delivered by Guarantor in connection herewith are legal, valid and binding obligations of Guarantor and are enforceable against Guarantor in accordance with their terms except as such enforceability may be limited by (i) the effect of any applicable bankruptcy, insolvency, reorganization, moratorium or similar Requirement of Law affecting creditors’ rights generally and (ii) general principles of equity. | 36Enforceability
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You agree you will promptly provide the Company a new address for any notices to be delivered pursuant to Section 6.1 of the Employment Agreement. | 65Notices
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No provision of this Agreement is to be interpreted for or against any party because that party or that party’s representative drafted such provision. | 55Interpretations
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The Company has timely filed 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, as amended (the “1934 Act”) (all of the foregoing filed prior to the date hereof and all exhibits included therein and financial statements and schedules thereto and documents (other than exhibits to such documents) incorporated by reference therein, being hereinafter referred to herein as the “SEC Documents”). As of their respective dates, the SEC Documents complied in all material respects with the requirements of the 1934 Act and the rules and regulations of the SEC promulgated thereunder applicable to the SEC Documents, and none of the SEC Documents, at the time they were filed with the SEC, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. None of the statements made in any such SEC Documents is, or has been, required to be amended or updated under applicable law (except for such statements as have been amended or updated in subsequent filings prior the date hereof). As of their respective dates, 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, 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 1934 Act. For the avoidance of doubt, filing of the documents required in this Section 3(g) via the SEC’s Electronic Data Gathering, Analysis, and Retrieval system (“EDGAR”) shall satisfy all delivery requirements of this Section 3(g). | 43Financial Statements
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No amendment to or waiver of any provision of this Agreement, and no consent to any departure by any Company herefrom, shall in any event be effective unless in a writing manually signed by or on behalf of the Administrative Agent and the requisite Lenders pursuant to Section 11.1 [Modifications, Amendments or Waivers] of the Credit Agreement. Any such agreement, waiver or consent made with such written consent being effective to bind all the Lenders. | 60Modifications
|
The Company is a corporation duly organized, validly existing under, and by virtue of, the laws of Nevada, and is in good standing under such laws. The Company has all requisite corporate power and authority to own and operate its properties and assets and to carry on its business as presently conducted. The Company is duly qualified and authorized to transact business and is in good standing as a foreign corporation in each jurisdiction in which the failure to so qualify would have a material adverse effect on its business, properties or financial condition. | 66Organizations
|
There is no investigation or review pending or, to the knowledge of Parent Stockholder, threatened by any Governmental Entity against Parent Stockholder or with respect to its Voting Shares, and there are no Legal Proceedings pending or, to the knowledge of Parent Stockholder, threatened against Parent Stockholder or any of its properties at law or in equity. | 58Litigations
|
No proceeds of any Purchase Price payment hereunder will be used (i) for a purpose that violates, or would be inconsistent with, any law, rule or regulation applicable to Originator or (ii) to acquire any security in any transaction which is subject to Section 13 or 14 of the Securities Exchange Act of 1934, as amended. | 92Use Of Proceeds
|
No consent, approval, authorization or order of, or qualification with, any court or Governmental Authority is required in connection with the execution, delivery or performance by Borrower of this Agreement or the other Loan Documents, except for any of the foregoing that have already been obtained. | 22Consents
|
The Holder has the requisite legal capacity, power and authority to enter into, and perform is obligations under, each Transaction Document to which it is a party. Each of the execution, delivery and performance of each such Transaction Document by the Holder, and the consummation by the Holder of the Transactions to which it is a party, have been duly authorized by all requisite corporate action on the part of the Holder, as applicable, and no further consent or authorization is required. Each Transaction Document to which the Holder is a party has been duly authorized, executed and delivered by the Holder, and constitutes the legal, valid and binding obligations of the Holder, enforceable against the Holder in accordance with its terms, except as such enforceability may be limited by general principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies and except as rights to indemnification and to contribution may be limited by federal or state securities laws. | 10Authorizations
|
This Agreement, along with the 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
|
In consideration of Executive’s performance of the responsibilities and duties set forth in this Agreement, the Bank will provide Executive the compensation specified in this Agreement. The Bank will pay Executive a salary of $155,000.00 per year (“Base Salary”). Such Base Salary will be payable in accordance with the customary payroll practices of the Bank. During the term of this Agreement, the Board may consider increasing, but not decreasing (other than a decrease which is applicable to all senior officers of the Bank and in a percentage not in excess of the percentage decrease for other senior officers), Executive’s Base Salary as the Board deems appropriate. Any change in Base Salary will become the “Base Salary” for purposes of this Agreement. | 11Base Salary
|
Notwithstanding the foregoing, except as may otherwise be determined by the Committee, upon the occurrence of a Change in Control (as defined in the Plan), this Award shall become vested immediately prior to a Change in Control as to 100% of the RSUs for which the Vesting Date has not yet occurred (it being understood that, in such circumstance, Grantee will not be entitled to any RSUs that have not vested in respect of any Vesting Dates preceding the occurrence of the Change of Control). | 17Change In Control
|
This Agreement may be executed in one or more counterparts (including by means of facsimile or other electronic means), each of which shall be deemed an original but all of which together will constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Agreement by facsimile or other electronic means shall be effective as delivery of an originally executed counterpart to this Agreement. | 26Counterparts
|
As President and Chief Executive Officer of the Company, you will work primarily out of the Company’s offices in Stamford, Connecticut and traveling from time to time as necessary. As President and Chief Executive Officer, you have responsibility for the Company’s operations and strategic direction and the selection, management and termination of the Company’s senior executive team, as well as other tasks assigned to you by the Board from time to time. You will continue to report directly to the Board. The Company will continue to recommend that you serve on the Board so long as you remain Chief Executive Officer of the Company. While employed by the Company, you will devote substantially all of your business time, energy and skill to the performance of your duties for the Company. Notwithstanding the foregoing, you will be entitled to (i) serve as a member of the board of directors of up to two other public companies (including your continued service as a director of ViewRay, Inc.) subject to the advance approval of the Board, which shall not be unreasonably withheld, (ii) advise private investors in connection with investments in early stage companies, provided you do not participate in the investment decision process of such investors on transactions that are competitive with the Business (as defined below); (iii) serve on civic, charitable, educational, religious, public interest or public service boards, and (iv) manage your personal and family investments, in each case, to the extent such activities do not materially interfere with the performance of your duties and responsibilities to the Company. | 69Positions
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Licensee shall be responsible, at its expense, for obtaining any approvals from the governmental entities which may be required under applicable law for the commercial exploitation of NO Therapy. | 5Approvals
|
With respect to any suit, action or proceeding arising out of or relating to this Agreement (“ Proceedings ”), each party hereto irrevocably submits to the jurisdiction of the federal or state courts located in Harris County, Texas, which submission shall be exclusive unless none of such courts has lawful jurisdiction over such Proceedings. | 82Submission To Jurisdiction
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The Corporate Taxpayer shall be entitled to deduct and withhold from any payment payable pursuant to this Agreement such amounts as the Corporate Taxpayer is required to deduct and withhold with respect to the making of such payment under the Code or any provision of U.S. federal, state, local or non-U.S. tax law; provided , that, the Corporate Taxpayer shall use commercially reasonable efforts to notify any applicable TRA Holder of its intent to withhold at least ten (10) Business Days prior to withholding such amounts. To the extent that amounts are so withheld and paid over to the appropriate Taxing Authority by the Corporate Taxpayer, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the relevant TRA Holder. The Corporate Taxpayer shall provide evidence of such payment to the relevant TRA Holder upon such TRA Holder’s written request, to the extent that such evidence is available. | 99Withholdings
|
The Term of this Agreement shall be for two (2) years, and shall commence on May 3, 2017 (the “Commencement Date”), and end on May 2, 2019 (the “Term”), unless terminated earlier as provided for herein. At the end of the Term of this Agreement, if you continue to be employed by the Company at the Company’s discretion without entering into a new written agreement, then you will become an at-will employee and will be paid at your then-current biweekly salary. Your principal place of employment will be at such offices as the Company may provide within the metropolitan Los Angeles, California area or such other place you and the Company mutually designate. You will travel as reasonably necessary for the performance of your duties and be reimbursed by Company for all of your travel-related expenses in accordance with the practices and policies of Company. | 89Terms
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The remedies provided in this Warrant shall be cumulative and in addition to all other remedies available under this Warrant, at law or in equity (including a decree of specific performance and/or other injunctive relief), and nothing herein shall limit the right of the Holder to pursue actual damages for any failure by the Company to comply with the terms of this Warrant. The Company acknowledges that a breach by it of its obligations hereunder may cause irreparable harm to the Holder and that the remedy at law for any such breach may be inadequate. The Company therefore agrees that, in the event of any such breach or threatened breach, the holder of this Warrant shall be entitled, in addition to all other available remedies, to seek an injunction restraining any breach. Notwithstanding the foregoing or anything else herein to the contrary, other than as expressly provided, if the Company is for any reason unable to issue and deliver Warrant Shares upon exercise of this Warrant as required pursuant to the terms hereof, the Company shall have no obligation to pay to the Holder any cash or other consideration or otherwise “net cash settle” this Warrant. | 75Remedies
|
This Agreement shall become effective upon its execution by each of the Contributing Parties and shall continue in full force and effect and may not be terminated or otherwise revoked by any Contributing Party until all of the Obligations shall have been indefeasibly paid in full (in lawful money of the United States of America or such other Currency as may be required under the Credit Agreement for the repayment of such Obligations) and discharged (other than contingent obligations for indemnification, expense reimbursement, tax gross-up or yield protection as to which no claim has been made), all Letters of Credit are returned undrawn or cash collateralized on terms acceptable to the relevant Issuing Bank in its sole discretion, and the Credit Agreement and financing arrangements evidenced and governed by the Credit Agreement shall have been terminated; provided that this Agreement shall terminate with respect to any Guarantor when such Guarantor is released from the Guaranty pursuant to Section 27 of the Guaranty to the extent no Payment has been made at such time by any Guarantor. | 34Effectiveness
|
All communications hereunder will be in writing and, except as otherwise expressly provided herein or after notice by one party to the other of a change of address, if sent to the Placement Agent, will be mailed, delivered or telefaxed and confirmed to Joseph Gunnar & Co., LLC, 30 Broad Street, 11th Floor, New York, NY 10004, Facsimile: (212) 440-9614, Attention: Eric Lord, with a copy (which shall not constitute notice) to Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., 666 Third Avenue, New York, NY 10017, Attention: Anthony J. Marsico, Esq., Facsimile (212) 983-3115, and if sent to the Company, will be mailed, delivered or e-mailed and confirmed to Akers Biosciences, Inc., 201 Grove Road, Trenton, NJ 08086, Attention: John J. Gormally, Facsimile (856) 803-7669, with a copy (which shall not constitute notice) to Lucosky Brookman LLP, 101 Wood Avenue South, 5 th Floor, Woodbridge, NJ 08830, Attention: Joseph M. Lucosky, Esq. | 65Notices
|
Tenant guarantees, warrants and represents that the individual or individuals signing this Amendment on behalf of Tenant have the power, authority and legal capacity to sign this Amendment on behalf of and to bind all entities, corporations, partnerships, limited liability companies, joint venturers or other organizations and entities on whose behalf such individual or individuals have signed. Landlord guarantees, warrants and represents that the individual or individuals signing this Amendment on behalf of Landlord have the power, authority and legal capacity to sign this Amendment on behalf of and to bind all entities, corporations, partnerships, limited liability companies, joint venturers or other organizations and entities on whose behalf such individual or individuals have signed. | 9Authority
|
The Company has the full corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated herein. The execution, delivery and performance by the Company of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Company, and no further corporate approval or authorization is required on the part of the Company. This Agreement has been duly and validly executed and delivered by the Company. Assuming due authorization, execution and delivery by the Investor, this Agreement constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms and conditions, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) (the “ Bankruptcy Exceptions ”). | 9Authority
|
(a) On any Conversion Date, (i) all Foreign Currency Loans then outstanding shall be converted into Dollar Loans (calculated on the basis of the relevant Exchange Rates as of the Business Day immediately preceding such Conversion Date) (“ Converted Loans ”), (ii) all accrued and unpaid interest and other amounts owing in respect of such Converted Loans through such Conversion Date shall be converted to Dollars (calculated on the basis of the relevant Exchange Rates as of the Business Day immediately preceding such Conversion Date) and shall be immediately due and payable and (iii) the Commitments of the Lenders shall terminate. After any Conversion Date, all Eurocurrency Loans shall bear interest at the rate which would otherwise be applicable to ABR Loans. | 67Participations
|
If the Employee’s employment ( x ) is terminated by reason of the Employee’s death or Disability or ( y ) terminates by reason of the Employee’s retirement on or after the Employee reaching normal retirement age (as determined by the retirement policy of the Company applicable to the Employee), in either case before the last day of the Performance Cycle, ( 1 ) a pro rata number of the Performance Shares shall be earned and vested based on actual achievement of the Performance Goals during the entire Performance Cycle (as if the Employee’s employment had continued during the entire Performance Cycle), with such resulting number of Performance Shares then multiplied by a fraction representing the elapsed portion of the Performance Cycle through the date of the Employee’s actual date of termination of employment, and ( 2 ) any Performance Shares that do not vest pursuant to this Section 2(b)(i) shall automatically be forfeited and cancelled; provided , that ( x ) at least six (6) months must elapse from the Grant Date to the date of termination of the Employee’s employment for any termination initiated by the Employee to be treated as a retirement, and ( y ) in the case of the Employee’s retirement, such pro rata vesting shall be conditioned on the Administrator’s determination that the Employee remains in material compliance with any restrictive covenants applicable to the Employee. | 27Death
|
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LANDLORD AND TENANT EACH WAIVE THEIR RESPECTIVE RIGHTS TO TRIAL BY JURY IN ANY LITIGATION ARISING OUT OF, RESULTING FROM, OR WITH RESPECT TO THIS LEASE. | 96Waiver Of Jury Trials
|
THE BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT IT WILL NOT COMMENCE ANY ACTION, LITIGATION OR PROCEEDING OF ANY KIND OR DESCRIPTION, WHETHER IN LAW OR EQUITY, WHETHER IN CONTRACT OR IN TORT OR OTHERWISE, AGAINST THE ADMINISTRATIVE AGENT, ANY LENDER OR ANY RELATED PARTY OF THE FOREGOING IN ANY WAY RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS RELATING HERETO OR THERETO, IN ANY FORUM OTHER THAN THE COURTS OF THE STATE OF NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE JURISDICTION OF SUCH COURTS AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION, LITIGATION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION, LITIGATION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT OR ANY LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION. | 82Submission To Jurisdiction
|
This Agreement, the Purchase Agreement and the agreements and documents referred to in the Purchase Agreement, along with the Schedules and Exhibits hereto and thereto, contain the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and thereof and supersede any prior agreements and understandings between the Parties relating to such subject matter. | 38Entire Agreements
|
There shall be deducted from each payment under this Agreement the amount of any tax required by any governmental authority to be withheld and paid over by the Company to such governmental authority for the account of Employee. | 86Tax Withholdings
|
All expenses incurred in connection with this Agreement, including without limitation any transfer costs, escrow fees and registration costs, will be treated as Transaction Expenses under and paid in accordance with the Purchase Agreement. | 41Expenses
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Any capitalized terms used herein that are not otherwise defined below or elsewhere in this agreement shall have the same meaning provided under the Omnibus Plan. | 29Definitions
|
The Borrowers hereby agree to indemnify Agent and each Lender and to hold each Lender harmless from any loss or expense which such Lender may sustain or incur as a consequence of (i) default by the Borrowers in payment when due of the principal amount of or interest on any Eurodollar Rate Loan, (ii) default by the Borrowers in making any prepayment after the Borrowers have given a notice thereof in accordance with the provisions of this Agreement or (iii) the making of a prepayment (whether voluntary, as a result of acceleration or otherwise) other than a mandatory prepayment, of Eurodollar Rate Loans on a day which is not the last day of an Interest Period with respect thereto, including, without limitation, in each case, any such loss or expense arising from the reemployment of funds obtained by it or from fees payable to terminate the deposits from which such funds were obtained. A certificate in reasonable detail as to any amounts that a Lender or Agent is entitled to receive under this Section 2.17 submitted by such Lender to the Borrowers shall be conclusive in the absence of manifest or demonstrable error and all such amounts shall be paid by Borrowers promptly upon demand by such Lender, unless such amounts are being contested as a result of manifest or demonstrable error, in which case they shall be paid promptly upon resolution of such manifest or demonstrable error. This covenant shall survive the termination of this Agreement and the payment of the Notes, if any, and all other amounts payable hereunder; provided that, the Borrowers shall not be required to compensate Agent or a Lender pursuant to this Section 2.17 for any amounts incurred more than ninety (90) days prior to the date that Agent or such Lender, as the case may be, notifies the Borrowers of such losses or expenses and of Agent’s or such Lender’s intention to claim compensation therefor. | 50Indemnity
|
The Managing Member may take all action which may be necessary or appropriate (i) for the continuation of the Company’s valid existence as a limited liability company under the laws of the State of Delaware (and of each other jurisdiction in which such existence is necessary to enable the Company to conduct the business in which it is engaged) and (ii) for the maintenance, preservation and operation of the business of the Company in accordance with the provisions of this Agreement and applicable laws and regulations. The Managing Member may file or cause to be filed for recordation in the office of the appropriate authorities of the State of Delaware, and in the proper office or offices in each other jurisdiction in which the Company is formed or qualified, such certificates (including certificates of limited liability companies and fictitious name certificates) and other documents as are required by the applicable statutes, rules or regulations of any such jurisdiction or as are required to reflect the identity of the Members and the amounts of their respective capital contributions. The Managing Member may cause the Company to comply, to the extent procedures are available and those matters are reasonably within the control of the Officers, with all requirements necessary to qualify the Company as a foreign limited liability company in any jurisdiction other than the State of Delaware. | 40Existence
|
Enter into any arrangement with any Person (other than another Group Member) providing for the leasing by any Group Member other than a Systems Subsidiary of real or personal property that has been or is to be sold or transferred by such Group Member to such Person or to any other Person to whom funds have been or are to be advanced by such Person on the security of such property or rental obligations of such Group Member (a “ Sale and Leaseback ”), other than (i) Sale and Leasebacks of real or personal property by a Group Member effected within 180 days after the date of the acquisition of such property if sold or transferred for a price equal or higher than the acquisition price paid by such Group Member and (ii) Sale and Leasebacks in amount not to exceed $25,000,000 at any one time outstanding. | 77Sales
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This Agreement may be amended, modified or supplemented but only in writing signed by each of the Parties hereto. | 2Amendments
|
Scribante hereby reaffirms and restates his continuing obligations as set forth in Section 7(c) of the Employment Agreement with respect to the disclosure and assignment to Company of all Innovations (as defined in the Employment Agreement), which Section 7(c) is hereby incorporated by reference herein and shall remain in full force and effect unaffected by this Agreement and Release. Scribante recognizes and agrees that additional consideration to which he would not otherwise be entitled is being provided to him hereunder for him to reaffirm and agree to his foregoing obligations. | 31Disclosures
|
Except as described in Section 2, if the Grantee’s employment or services are terminated for any reason prior to any Determination Date, the Grantee’s right to the Performance Share Units subject to the tranches of this Award Agreement tied to those Determination Dates and still subject to a Restriction Period automatically shall terminate and be forfeited by the Grantee. The Committee retains the right to accelerate or waive restrictions on Performance Share Units covered by this Award Agreement. | 88Terminations
|
All capitalized terms used, but not defined, in this Amendment #2 have the same meaning as in the Agreement. | 28Defined Terms
|
Except as provided in Section 2.11(f) and (i), the Borrower will indemnify each Lender and the Administrative Agent for the full amount of Indemnified Taxes or Other Taxes (including, without limitation, any Indemnified Taxes or Other Taxes imposed on amounts payable under this Section 2.11) paid by such Lender or the Administrative Agent (as the case may be) and any interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally asserted. | 49Indemnifications
|
Neither the execution or delivery by the ONEM Shareholders of this Agreement to which the ONEM Shareholders are a party nor the consummation or performance by the ONEM Shareholders of the transactions contemplated hereby or thereby will, directly or indirectly, (a) contravene, conflict with, or result in a violation of any provision of the organizational documents of the ONEM Shareholders; (b) contravene, conflict with, constitute a default (or an event or condition which, with notice or lapse of time or both, would constitute a default) under, or result in the termination or acceleration of, any agreement or instrument to which any of the ONEM Shareholders are a party or by which the properties or assets of the ONEM Shareholders is bound; or (c) contravene, conflict with, or result in a violation of, any law or order to which any of the ONEM Shareholders, or any of the properties or assets of the ONEM Shareholders, may be subject. | 61No Conflicts
|
This Agreement may be executed in one or more counterparts, each of which is an original, and all of which together are one instrument. | 26Counterparts
|
While it expects to continue this Plan indefinitely, 3M reserves the right to terminate the Plan at any time and for any reason. Upon the termination of the Plan and to the extent permitted by section 409A of the Code, all elections to contribute to the Plan shall be revoked and the Plan shall immediately distribute in cash to the respective Participants and Beneficiaries the entire remaining balances of the Accounts. | 88Terminations
|
This Assignment may be executed in any number of counterparts, and each counterpart hereof shall be deemed to be an original instrument, but all such counterparts shall constitute but one instrument. Any signature hereto delivered by a party by facsimile transmission shall be deemed an original signature hereto. | 26Counterparts
|
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 and except for filings or registrations necessary to perfect Liens created pursuant to the Loan Documents, (b) will not violate any applicable law or regulation or the charter, by-laws or other organizational documents of the Borrower or any of its Subsidiaries or any material order of any Governmental Authority binding upon the Borrower or any of its Subsidiaries, (c) will not violate or result in a default under any Exclusive License, indenture, material agreement or other material instrument binding upon the Borrower or any of its Subsidiaries or its assets, or give rise to a right thereunder to require any payment to be made by the Borrower or any of its Subsidiaries, and (d) will not result in the creation or imposition of any Lien on any asset of the Borrower or any of its Subsidiaries, other than Liens created under the Loan Documents. | 61No Conflicts
|
The representations made by the Subscriber in Section 2.1 of this Agreement shall be true and correct in all material respects when made, and shall be true and correct in all material respects on and as of the Closing Date. | 76Representations
|
(a) Any and all payments made by or on behalf of a Loan Party under this Agreement or any other Loan Document shall be made free and clear of, and without deduction or withholding for or on account of, any Taxes; provided , that if a Loan Party, the Administrative Agent or any other applicable withholding agent shall be required by applicable Requirement of Law to deduct or withhold any Taxes from such payments, then (i) the applicable withholding agent shall make such deductions or withholdings as are reasonably determined by the applicable withholding agent to be required by any applicable Requirement of Law, (ii) the applicable withholding agent shall timely pay the full amount deducted or withheld to the relevant Governmental Authority within the time allowed and in accordance with applicable Requirement of Law, and (iii) to the extent withholding or deduction is required to be made on account of Indemnified Taxes or Other Taxes, the sum payable by the Loan Party shall be increased as necessary so that after all required deductions and withholdings have been made (including deductions or withholdings applicable to additional sums payable under this Section 2.17) the Administrative Agent or any Lender, as applicable, receives an amount equal to the sum it would have received had no such deductions or withholdings been made. Whenever any Indemnified Taxes or Other Taxes are payable by a Loan Party, as promptly as possible thereafter, such Loan Party shall send to the Administrative Agent for its own account or for the account of a Lender, as the case may be, a certified copy of an official receipt (or other evidence acceptable to the Administrative Agent or such Lender, acting reasonably) received by the Loan Party showing payment thereof. Without duplication, after any payment of Taxes by any Loan Party or the Administrative Agent to a Governmental Authority as provided in this Section 2.17, the Borrower shall deliver to the Administrative Agent or the Administrative Agent shall deliver to the Borrower, as the case may be, a copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of any return required by applicable Requirements of Law to report such payment or other evidence of such payment reasonably satisfactory to the Borrower or the Administrative Agent, as the case may be. | 87Taxes
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