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The undersigned unconditionally waives, to the fullest extent permitted by applicable law, (a) any right it may have to a trial by jury in respect of any litigation directly or indirectly arising out of, under or in connection with this Pledge Agreement Supplement or any of the other Loan Documents and (b) any claims for punitive damages (to the extent such claims arise from the use of proceeds of the Loans for the purpose of acquisitions). Each party hereto (i) certifies that no representative, agent or attorney of any 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 (ii) acknowledges that it and the other parties hereto have been induced to enter into this Pledge Agreement Supplement and the other Loan Documents, as applicable, by, among other things, the mutual waivers and certifications in this Section 8 . | 96Waiver Of Jury Trials
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The Borrower will, and will cause each of the Restricted Subsidiaries to, at all times maintain, in force, with financially sound and reputable insurance companies, and pay all premiums and costs related to, insurance coverages in such amounts (with no materially greater risk retention) and against such risks as are deemed by the management of the Borrower to be sufficient in accordance with usual and customary practices of companies of established repute engaged in the same or similar business as the Borrower and the Restricted Subsidiaries. The Borrower shall deliver to the Administrative Agent certificates of insurance evidencing the existence of insurance to be maintained by the Borrower and its Restricted Subsidiaries pursuant to Section 5.05 and, if applicable, the Administrative Agent shall be designated as an additional insured and loss payee as its interest may appear thereunder, or solely as the additional insured, as the case may be, thereunder. Each policy of insurance shall contain a clause or endorsement requiring that the insurer shall endeavor to give not less than thirty (30) days’ prior written notice to the Administrative Agent in the event of cancellation of the policy. The Administrative Agent shall have no obligation to give the Borrower or any Restricted Subsidiary notice of any notification received by the Administrative Agent with respect to any insurance policies or take any steps to protect the Borrower’s or any Restricted Subsidiary’s interests under such policies. | 51Insurances
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The Transactions (a) have been duly authorized by all requisite corporate and, if required, stockholder action and (b) will not (i) violate (A) any provision of law, statute, rule or regulation, or of the certificate or articles of incorporation or other constitutive documents or by-laws of Holdings, the Borrowers or with respect to each Borrower, any of their respective Restricted Subsidiaries, (B) any order of any Governmental Authority or (C) any provision of any indenture, material agreement or other material instrument to which Holdings, the Borrowers or with respect to each Borrower, any of their Restricted Subsidiaries is a party or by which any of them or any of their property is or may be bound, (ii) be in conflict with, result in a breach of or constitute (alone or with notice or lapse of time or both) a default under, or give rise to any right to accelerate or to require the prepayment, repurchase or redemption of any obligation under any such indenture, material agreement or other material instrument or (iii) result in the creation or imposition of any Lien upon or with respect to any material property or assets now owned or hereafter acquired by Holdings, the Borrowers or with respect to each Borrower, any of their respective Restricted Subsidiaries (other than any Lien created under the Security Documents). | 10Authorizations
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There are no actions, suits or proceedings pending or, to the knowledge of the Borrower, threatened in writing against the Borrower or any of the Restricted Subsidiaries that would reasonably be expected to result in a Material Adverse Effect. | 58Litigations
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All notices or other communications delivered or given under this Lease shall be in writing and shall be deemed to have been duly given if hand-delivered, sent by certified or registered mail, return receipt requested, or nationally-utilized overnight delivery service, Portable Document Format (“PDF”) or confirmed facsimile transmission, as the case may be. Such notices shall be addressed to the parties at the addresses set forth above, or to such other address as may be designated by any party in a writing delivered to the other in the manner set forth in this Section 15. Notices sent by certified or registered mail shall be deemed received three (3) business days after being mailed. All other notices shall be deemed received on the date delivered. Routine communications may be made by e-mail to Lessor at [email protected] and to Lessee at [email protected] or fax to Lessor at (516) 226-1155 and to Lessee at (212) 465-6148. | 65Notices
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The provisions of this 2017-1 Servicing Supplement and the 2017-1 Servicing Agreement shall be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns. | 13Binding Effects
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If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated. It is hereby stipulated and declared to be the intention of the Parties that the Parties would have executed the remaining terms, provisions, covenants and restrictions without including any of such which may be hereafter declared invalid, void or unenforceable. In addition, the Parties agree to use their respective best efforts to agree upon and substitute a valid and enforceable term, provision, covenant or restriction for any of such that is held invalid, void or enforceable by a court of competent jurisdiction. | 79Severability
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The parties hereto shall pay their own costs and expenses in connection herewith, except that the Company shall pay the fees and expenses of Goodwin Procter LLP not to exceed $50,000, regardless of whether the transactions contemplated hereby are consummated; it being understood that (a) Goodwin Procter LLP has only rendered legal advice to the BBA Investors participating in this transaction and not to the Company or any other Investor in connection with the transactions contemplated hereby, and that each of the Company and each Investor has relied for such matters on the advice of its own respective counsel, and (b) except as otherwise set forth in this Section 9.5, the Company shall not be obligated to pay any other fees and expenses of the Investors, including without limitation the fees and expenses of counsel to any other Investors hereunder. Such expenses shall be paid at the Closing or, if the Closing does not occur, within five (5) Business Days of the termination of this Agreement. The Company shall reimburse the Investors upon demand for all reasonable out-of-pocket expenses incurred by the Investors, including without limitation reimbursement of attorneys’ fees and disbursements, in connection with any amendment, modification or waiver of this Agreement or the other Transaction Documents requested by the Company. In the event that legal proceedings are commenced by any party to this Agreement against another party to this Agreement in connection with this Agreement or the other Transaction Documents, the party or parties which do not prevail in such proceedings shall severally, but not jointly, pay their pro rata share of the reasonable attorneys’ fees and other reasonable out-of-pocket costs and expenses incurred by the prevailing party in such proceedings. | 41Expenses
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It will not change (i) its name as it appears in the official public record in the jurisdiction of its incorporation (as contemplated by Section 9-503(a)(1) of the UCC), (ii) its status as a “registered organization” (within the meaning of Article 9 of any applicable enactment of the UCC), (iii) its organizational identification number, if any, issued by its jurisdiction of incorporation, or (iv) its jurisdiction of organization unless it shall have: (A) given the Lender at least ten (10) days’ prior written notice thereof; (B) at least three (3) Business Days prior to such change, delivered to the Lender all financing statements, instruments and other documents reasonably requested by the Lender in connection with such change or relocation and (C) solely if requested by the Lender, caused an opinion of counsel reasonably acceptable to the Lender to be delivered to the Lender to the effect that TPNA’s security interest is valid and perfected, such opinion to be in form and substance similar to the related opinion delivered on the Closing Date and otherwise reasonably acceptable to the Lender. | 73Records
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This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall be deemed to be one and the same Agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement. | 26Counterparts
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As of the Closing Date, all material insurance maintained by or on behalf of the Loan Parties and the Subsidiaries is in full force and effect. | 51Insurances
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Each Credit Party shall, and shall cause each of its Restricted Subsidiaries to, pay and discharge all material taxes, assessments, and other charges and claims related thereto imposed on any Restricted Entity prior to the date on which penalties attach other than any tax, assessment, charge, or claim which is being contested in good faith and for which adequate reserves have been established in compliance with GAAP. | 87Taxes
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From and after the Effective Date, the Administrative Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other amounts) to the Assignee whether such amounts have accrued prior to, on or after the Effective Date. The Assignor and the Assignee shall make all appropriate adjustments in payments by the Administrative Agent for periods prior to the Effective Date or with respect to the making of this assignment directly between themselves. Notwithstanding the foregoing, the Administrative Agent shall make all payments of interest, fees or other amounts paid or payable in kind from and after the Effective Date to the Assignee. | 68Payments
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If any provision of this Agreement or the application thereof to any Person or circumstance shall be invalid, illegal or unenforceable to any extent, the remainder of this Agreement and the application of such provision to other Persons or circumstances shall not be affected thereby and shall be enforced to the greatest extent permitted by applicable Law so long as the economic or legal substance of the Transactions is not affected in any manner materially adverse to any party. Upon such determination that any term or other provision is invalid or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the Transactions are fulfilled to the greatest extent possible. | 79Severability
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All notices, requests and other communications to either party hereunder shall be in writing (including facsimile transmission or electronic mail) and shall be given, (a) if to Sellas, in accordance with the provisions of the Plan of Merger and (b) if to the Stockholder, to the Stockholder’s address, electronic mail address or facsimile number set forth on a signature page hereto, or to such other address, electronic mail address or facsimile number as the Stockholder may hereafter specify in writing to Sellas. | 65Notices
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This Agreement will inure to the benefit of and be binding upon the parties hereto and their successors and assigns. This Agreement constitutes the final expression of the entire agreement of the parties with respect to the subordination of the Lease to the lien of the Security Instrument. If there are any conflicts between the Security Instrument and the Lease, the Security Instrument shall control; provided, however, that if Tenant is not in default under the Lease beyond any applicable notice, grace or cure period, then the Lease shall control with respect to the disbursement of insurance proceeds received following a casualty event. This Agreement may not be modified other than by an agreement in writing, signed by the parties hereto or their respective successors in interest. Except as modified by this Agreement, all of the terms and provisions of the Lease will remain in full force and effect. If there are any conflicts between the Lease and this Agreement, the terms and provisions of this Agreement will control. This Agreement may be executed in any number of identical counterparts, which shall collectively constitute one agreement. This Agreement will be governed by the laws of the state where the Property is located and applicable federal law, without regard to its conflicts of laws principles. In the event of any litigation to enforce the terms of this Agreement or to recover damages for the breach thereof, the prevailing party will be entitled to recover from the nonprevailing party all attorneys’ fees and other costs and expenses incurred in connection therewith. | 59Miscellaneous
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Unless this Note has been previously converted in accordance with the terms of Section 3 hereunder, the Principal Amount and all accrued but unpaid interest thereon shall be due and payable on the date that is the earlier of the (i) 5-year anniversary of the date hereof, or (ii) the date that the Borrower completes a Qualified Financing (as hereafter defined) (the “ Maturity Date ”). On the affirmative vote of the holders of at least two-thirds (2/3rds) of the outstanding aggregate Principal Amount of this Note and each of the Other Notes (the “ Required Holders ”), the Borrower may from time to time extend the Maturity Date of this Note and each of the Other Notes. All payments shall be made in lawful money of the United States of America at the principal office of the Borrower, or at such other place as the holder hereof may from time to time designate in writing to the Borrower. Payment shall be credited first to accrued interest due and payable and the remainder applied to principal. The Borrower hereby waives demand, notice, presentment, protest and notice of dishonor. | 68Payments
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All notices, requests and demands to or upon the Administrative Agent, any Lender or any Guarantor hereunder shall be effected in the manner provided for in Section 10.2 of the Credit Agreement; provided that any such notice, request or demand to or upon any Guarantor shall be addressed to such Guarantor at its notice address set forth under its signature below. | 65Notices
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Borrowers shall use the proceeds of each Credit Extension solely for Borrowers’ business purposes, consistent with Borrowers’ business as conducted on the Closing Date . | 92Use Of Proceeds
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(i) grant, extend, amend (except as required in the diligent prosecution of the Proprietary Rights owned (beneficially, and of record where applicable) by or developed for the Company and its Subsidiaries), waive, or modify any material rights in or to, sell, assign, lease, transfer, license, let lapse, abandon, cancel, or otherwise dispose of, or extend or exercise any option to sell, assign, lease, transfer, license, or otherwise dispose of, any Proprietary Rights, or (ii) fail to exercise a right of renewal or extension under any material agreement under which the Company or any of its Subsidiaries is licensed or otherwise permitted by a third party to use any Proprietary Rights (other than "shrink wrap" or "click through" licenses). | 53Intellectual Property
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The Administrative Agent shall have received (A) the audited Consolidated balance sheet of the Borrower and its Subsidiaries and the related audited statements of income and retained earnings and cash flows for the three Fiscal Years most recently ended prior to the Closing Date for which such financial statements are available and (B) unaudited Consolidated balance sheets of the Borrower and its Subsidiaries and related unaudited interim statements of income and retained earnings for each quarterly period ended since the last audited financial statements for which financial statements are available. | 43Financial Statements
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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”). The Company has delivered to the Buyer true and complete copies of the SEC Documents, except for such exhibits and incorporated 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 subsequent to September 30, 2016, 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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The terms and provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their successors and assigns. | 59Miscellaneous
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To facilitate the orderly conduct of the Company, the Executive agrees to cooperate, at no charge, with the Company’s reasonable requests for information or assistance related to (i) the time of her employment, (ii) any investigations (including internal investigations) and audits of the Company’s management’s current and past conduct and business and accounting practices and (iii) the Company’s defence of, or other participation in, any administrative, judicial, or other proceeding arising from any charge, complaint or other action which has been or may be filed relating to the period during which Executive was employed by the Company. The Company will promptly reimburse Executive for her reasonable, customary and documented out-of-pocket business expenses in connection with the performance of her duties under this Section 5 . | 24Cooperation
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The execution, delivery and performance by each Loan Party of each Loan Document to which such Person is or is to be a party have been duly authorized by all necessary corporate or other organizational action, and do not and will not (a) contravene the terms of any of such Person’s Organization Documents; (b) conflict with or result in any breach or contravention of, or the creation of any Lien (other than Liens created under the Loan Documents) under, or require any payment to be made under (i) any material Contractual Obligation to which such Person is a party or affecting such Person or the properties of such Person or any of its Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject; or (c) violate any Law. | 10Authorizations
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Subject to the limitations and other provisions of this Agreement, the representations, warranties, covenants and agreements of the Parties contained herein shall survive the Closing Date and shall remain in full force and effect for eighteen (18) months thereafter; provided, however, that (i) the representations and warranties in Sections 5.1, 5.3, 5.8, 6.1, 6.2, 7.1 and 7.2 (the “ Fundamental Representations ”), shall survive indefinitely, (ii) the representations and warranties in Sections 5.15, 5.22, 6.8 and 6.11 shall survive until thirty (30) days following the expiration of the relevant statute of limitations in respect thereof, and (iii) all covenants contemplating or involving actions to be taken, or obligations in effect, after the Closing (including but not limited to those set forth in Sections 8.11, 8.12, 8.16, 8.18 , Article X and Article XII ) shall survive the Closing and shall continue in full force and effect after the Closing until fully performed in accordance with their terms. | 85Survival
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This Commitment Letter and the commitments and undertakings hereunder shall not be assignable by any party hereto without the prior written consent of each other party hereto, and any attempted assignment shall be void and of no effect; provided , however , that nothing contained in this paragraph shall prohibit us (in our sole discretion), subject to the terms of this Commitment Letter, including Section 3 hereof, from granting participations in, or selling assignments of all or a portion of, the commitments or the advances under the Senior Credit Facilities. This Commitment Letter is intended to be solely for the benefit of the parties hereto and is not intended to confer any benefits upon, or create any rights in favor of, any person other than the parties hereto and the Indemnified Persons, except that, subject to the limitations in Section 3, the Commitment Parties may perform the duties and activities described hereunder through any of their respective affiliates or branches and the provisions of the third preceding paragraph shall apply with equal force and effect to any of such affiliates or branches so performing any such duties or activities. | 7Assignments
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The Company and its Subsidiaries on a consolidated basis (both on a basis including and excluding the Excluded Subsidiary) are, and the Company is, Solvent. On the Closing Date and on each date of a Borrowing by any Designated Borrower, such Designated Borrower is Solvent. | 80Solvency
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The failure of a party to insist upon strict adherence to any term of this Plan on any occasion shall not be considered a waiver thereof or deprive that party of the right thereafter to insist upon strict adherence to that term or any other term of this Plan. | 97Waivers
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If the Participant terminates employment with the Company or a Subsidiary at any time prior to the date upon which some or all of the Award vests in full as set forth in Section 3 hereof, other than because of the Participant’s death, Disability or retirement approved by the Committee, the Participant shall forfeit that portion of the Award that then remains unvested under this Agreement. If all or any portion of the Award made hereunder should be forfeited, the Participant hereby authorizes the Company to take all actions necessary to deduct the forfeited Performance Share Units or Performance Cash Units from the Award and acknowledges that the Participant shall have no claim for such Performance Share Units or Performance Cash Units or for compensation in any form whatsoever, as a result of such forfeiture. | 44Forfeitures
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Obligors shall indemnify, hold harmless and reimburse (within 10 days after demand therefor) Agent, Lenders and Issuing Banks for any Indemnified Taxes or Other Taxes (including those attributable to amounts payable under this Section) paid by Agent, any Lender or any Issuing Bank, with respect to any Obligations of such Borrower’s Borrower Group, Letters of Credit of such Borrower’s Borrower Group or Loan Documents, whether or not such Taxes were properly asserted by the relevant Governmental Authority, and including all penalties, interest and reasonable expenses relating thereto, as well as any amount that a Lender or an Issuing Bank fails to pay indefeasibly to Agent under Section 5.10 . A certificate as to the amount of any such payment or liability delivered to Borrower Agent by Agent, or by a Lender or an Issuing Bank (with a copy to Agent), shall be conclusive, absent manifest error. As soon as practicable after any payment of Taxes by any Obligor, Borrower Agent shall deliver to Agent a receipt from the Governmental Authority or other evidence of payment satisfactory to Agent. | 68Payments
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Any waiver by the Companies or the Holder of a breach of any provision of this Note shall not operate as or be construed to be a waiver of any other breach of such provision or of any breach of any other provision of this Note. The failure of the Companies or the Holder to insist upon strict adherence to any term of this Note on one or more occasions shall not be considered a waiver or deprive that party of the right thereafter to insist upon strict adherence to that term or any other term of this Note on any other occasion. Any waiver by the Companies or the Holder must be in writing. | 97Waivers
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The Company may withhold from any amounts payable under this Agreement all amounts authorized by the Executive or required to be withheld under any applicable federal, state, local, or foreign law or regulation. | 99Withholdings
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LANDLORD, TENANT AND MORTGAGEE HEREBY IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT. | 96Waiver Of Jury Trials
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From and after the Effective Date, the Agent shall make all payments in respect of the Assigned Interest (includ ing payments of principal, interest, fees and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date and to the Assignee for amounts which have accrued from and after the Effective Date. Notwithstanding the foreg oing, the Agent shall make all payments of interest, fees or other amounts paid or payable in kind from and after the Effective Date to the Assignee. | 68Payments
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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 the Borrower or any of the Borrower’s Affiliates or Subsidiaries) (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 and the Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. | 67Participations
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The continued accuracy in all material respects of the aforesaid representations and warranties is a condition precedent to Buyer's obligation to close. If any of said representations and warranties are not correct in all respects at the time the same is made or as of Closing and Seller had no knowledge of such inaccuracy when the representation or warranty was made (or when deemed remade at Closing) or if such warranty or representation becomes inaccurate on or prior to Closing other than by reason of Seller's default hereunder, Buyer may, upon being notified in writing by Seller of such occurrence on or prior to Closing, either: (a) terminate this Agreement and Escrow pursuant to the provisions of Section 8.5(a) hereof; or (b) waive such matter and proceed to Closing. If any of said representations and warranties are not correct in all respects at the time the same is made or as of Closing, and Seller had knowledge of such inaccuracy when the representation or warranty was made, or by its default hereunder caused the representation or warranty to be inaccurate when deemed remade at Closing, Buyer may either: (i) terminate this Agreement pursuant to the provisions of Section 8.6(a) ; or (ii) waive such matter and proceed to Closing. | 98Warranties
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Employer has employed and hereby continues to employ Employee, and Employee hereby accepts such continued employment, upon the terms and subject to the conditions set forth in this Agreement. Employee shall be employed by Employer but may serve (and if requested by Employer shall serve) as an officer and/or director of its parent, Forbes Energy Services Ltd. (“Parent”), or any subsidiary or affiliate of Employer or Parent. | 35Employment
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The Company shall (a) by 9:00 a.m. (New York City time) on the third Trading Day immediately following the date hereof, issue a press release disclosing the material terms of the transactions contemplated hereby, and (b) file a Current Report on Form 8-K with the Commission within the time required by the Exchange Act. | 71Publicity
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All non-competition, non-solicitation, non-disclosure and use, and non-recruiting obligations in Section 11 of this Agreement shall survive the expiration of the Employment Period and the voluntary or involuntary termination of the Executive’s employment with or without cause, and no dispute regarding any other provisions of this Agreement or regarding the Executive’s employment or the termination of the Executive’s employment shall prevent the operation and enforcement of these obligations. | 85Survival
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All communications and notices hereunder shall (except as otherwise expressly permitted herein) be in writing and given as provided in Section 10.02 of the Credit Agreement. All communications and notices hereunder to any Guarantor shall be given to it in care of the Borrower as provided in Section 10.02 of the Credit Agreement. | 65Notices
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This Agreement contains the entire understanding of the Company and the Advisor with respect to the subject matter here of . | 38Entire Agreements
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By its execution of this amendment,[Sales Agent] hereby consents to the addition of [Insert New Alternative Agents] as Alternative Agents and consents to the Company entering into Additional Sales Agreements with such Alternative Agents. | 22Consents
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As of the date hereof, the Company ’ s only Subsidiaries are set forth on Schedule 6(g) . The Company owns directly or indirectly, all of the equity interests of the Subsidiaries free and clear of any lien, charge, security interest, encumbrance, right of first refusal or other restriction, and all the equity interests of the Subsidiaries are validly issued and are fully paid, nonassessable and free of preemptive and similar rights. | 83Subsidiaries
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This agreement shall be governed by the construed in accordance with the laws of the State of Florida without regard to principles of conflict of laws. | 47Governing Laws
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The Company has filed all federal, state, local and foreign income, franchise and other tax returns which have been required to be filed, or has properly requested extensions thereof, and paid all taxes shown thereon through the date hereof, to the extent that such taxes have become due and are not being contested in good faith, except where the failure to so file or pay would not reasonably be expected to have a Material Adverse Effect. Except as otherwise disclosed in or contemplated by the Registration Statement or the Prospectus, no tax deficiency has been determined adversely to the Company which has had, or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. The Company has no knowledge of any federal, state or other governmental tax deficiency, penalty or assessment which has been asserted or threatened against it, in writing, which would reasonably be expected to have a Material Adverse Effect. | 87Taxes
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There shall be entered against the Borrower or any Restricted Subsidiary one or more judgments or decrees in excess of the greater of (x) $1,000,000 and (y) 3% of the Consolidated Tangible Net Worth in the aggregate at any one time outstanding (excluding any judgments or decrees (i) that shall have been outstanding less than 60 calendar days from the entry thereof or (ii) for and to the extent which the Borrower or such Restricted Subsidiary is insured and with respect to which the insurer has assumed responsibility therefor in writing or for and to the extent which such Person is otherwise indemnified if the terms of such indemnification are satisfactory to the Majority Lenders), and either (A) enforcement proceedings shall have been commenced by any creditor upon such judgment or order or (B) there shall be any period of 15 consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect. | 58Litigations
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The parties hereto agree that irreparable damage would occur if any provision of this Agreement were not performed by any Shareholder in accordance with the terms hereof and, accordingly, that Parent shall be entitled to seek an injunction or injunctions to prevent breaches of this Agreement or to enforce specifically the performance of the terms and provisions hereof, in addition to any other remedy to which Parent may be entitled at law or in equity. Each Shareholder hereby further waives (a) any defense in any action for specific performance that a remedy at law would be adequate and (b) any requirement under any law to post security or a bond as a prerequisite to obtaining equitable relief. | 81Specific Performance
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As used in this Agreement, the term “ Expenses ” shall include, without limitation, damages, losses, judgments, liabilities, fines, penalties, excise taxes, settlements, costs, attorneys’ fees, accountants’ fees and disbursements and costs of attachment or similar bonds, investigations and any expenses of establishing a right to indemnification under this Agreement. | 41Expenses
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The failure by one party to enforce a provision of this Agreement shall not constitute a waiver of such party’s right to enforce any future provision of this Agreement. | 97Waivers
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The Partnership shall use the proceeds of the offering of the Purchased Units to acquire assets as contemplated by the Noble Purchase Agreement. | 92Use Of Proceeds
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In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, the Purchaser and the Company will be entitled to specific performance under this Agreement. The parties agree that monetary damages may not be adequate compensation for any loss incurred by reason of any breach of obligations contained in this Agreement and hereby agree to waive and not to assert in any action for specific performance of any such obligation the defense that a remedy at law would be adequate. | 75Remedies
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In the event any provision of the Program shall be held illegal or invalid for any reason, the illegality or invalidity shall not affect the remaining parts of the Program, and the Program shall be construed and enforced as if the illegal or invalid provision had not been included. | 79Severability
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After the Closing, Seller shall cooperate with Buyer to prepare, and cause to be prepared, and file a Form 8-K/A with the Securities and Exchange Commission within 71 calendar days after the date that the initial report on Form 8-K reporting the completion of the acquisition of the Company must be filed. Such Form 8-K/A shall include all financial statements required to be filed with such report pursuant to Item 9.01 of Form 8-K and Regulation S-X (17 CFR part 210) and any other applicable rule or regulation promulgated under the Securities Exchange Act of 1934. Such cooperation shall include providing all information requested by Buyer, the Company or its representatives in connection with the ongoing audit of the financial statements of the Company for the years ended December 31, 2016, 2015 and 2014, and taking all actions necessary or appropriate to enable the Company to obtain a signed audit report from its auditor to enable the Company to the file the 8-K/A referenced above in the 71 day period referenced above. | 43Financial Statements
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The Assignor (i) represents and warrants that, as of the date hereof, it is the legal and beneficial owner of the interest being assigned by it hereunder and that such interest is held by it free and clear of any adverse claim; (ii) makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with the Credit Agreement, or the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Credit Agreement, or any other instrument or document executed or furnished pursuant thereto; and (iii) makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower or the performance or observance by the Borrower of any of its obligations under the Credit Agreement or any other instrument or document furnished pursuant thereto. | 76Representations
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This Agreement shall be governed by the laws of the State of Delaware, except to the extent federal law applies. Notwithstanding the foregoing, Sections 7(a) and (b) of this Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia. Any dispute arising out of this Agreement shall be resolved in either the Circuit Court for the City of Virginia Beach or the United States District Court for the Eastern District of Virginia. The Employee hereby submits to the jurisdiction of these courts and agrees that venue properly lies in those courts with respect to any action, suit, claim or dispute arising under or with respect to this Agreement. The parties hereto waive any right they might have to a jury trial. The provisions of this Agreement are offered by each party as a material inducement to enter into this Agreement. | 47Governing Laws
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The release executed by an Employee (in a form to be provided to the Employee by the Plan Administrator, within five days of the Termination Date in its sole and absolute discretion) under which, among other things, the Employee releases and discharges all Employers and related entities (as well as any third party for whom the employee provides services on the Employer’s behalf) from all claims and liabilities relating to the Employee’s employment with the Employer and/or the termination of the Employee’s employment, including without limitation, claims under the Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Family and Medical Leave Act, the Age Discrimination in Employment Act, the Older Workers Benefit Protection Act, where applicable, the California Fair Employment and Housing Act, the California Labor Code Sections 200 et seq., 510 et seq., 970 and 1959 et seq., defamation provisions of California Civil Code Section 44 et seq., and the New York State and City Human Rights Laws (and similar laws of any other state). | 1Agreements
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The Parties are entering into this Agreement in reliance upon and shall fully comply with all Applicable Law which directly or indirectly affect the crude petroleum gathered hereunder, or any receipt, throughput, delivery, transportation, handling or storage of crude petroleum hereunder or the ownership, operation or condition of the gathering operation, trucks and truck unloading facilities. Each Party shall be responsible for compliance with all Applicable Laws associated with such Party’s respective performance hereunder and the operation of such Party’s facilities, and, including without limitation, any and all required certifications required by the Department of Transportation. In the event any action or obligation imposed upon a Party under this Agreement or any Trucking Service Order shall at any time be in conflict with any requirement of Applicable Law, then this Agreement and any applicable Trucking Service Order, shall immediately be modified to conform the action or obligation so adversely affected to the requirements Applicable Law, and all other provisions of the Agreement and any applicable Trucking Service Order shall remain effective. | 4Applicable Laws
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The authorized capital stock of the Company consists of (i) 50,000,000 shares of Common Stock, of which (A) 3,500,000 shares; and (B) 15,000,000 shares (after giving effect to (x) the sale of the 6,818,000 Shares in the Offering, (y) the issuance in the Target Acquisition of the 7,582,000 shares of Common Stock to the Target Shareholders, and (z) the cancellation of the 2,900,000 shares of Common Stock in the Share Cancellation by the Company Controlling Shareholder), will be issued and outstanding immediately (I) prior to, and (II) following the Closing, respectively; and (ii) 5,000,000 shares of preferred stock, par value $.001 per share, of which none are and/or will be issued and outstanding and/or designated immediately prior to and following the Closing. Schedule 2.9 hereto provides the capital structure of the Company immediately prior to and following the Closing. To the knowledge of the Company, all issued and outstanding shares of capital stock have been (x) duly authorized and validly issued, are fully paid and non-assessable, and (y) issued and sold in compliance with the federal securities laws or the applicable statutes of limitation have expired. Other than as contemplated by this Agreement, to the knowledge of the Company, there are no (i) outstanding rights (including, without limitation, preemptive rights), warrants or options to acquire, or instruments convertible into or exchangeable for, any unissued shares of capital stock or other equity interest in the Company, or any contract, commitment, agreement, understanding or arrangement of any kind to which the Company is a party and relating to the issuance or sale of any capital stock or convertible or exchangeable security of the Company; (ii) obligations of the Company to purchase redeem or otherwise acquire any of its outstanding capital stock or any interest therein or to pay any dividend or make any other distribution in respect thereof; and/or (iii) anti-dilution or price adjustment provisions, co-sale rights, registration rights, rights of first refusal or other similar rights contained in the terms governing any outstanding security of the Company that will be triggered by the issuance of the Shares and no Person has any right to cause the Company to effect the registration under the Securities Act of any securities of the Company. | 16Capitalization
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No party may assign (by operation of Law or otherwise) either this Agreement or any of his, her or its rights, interests or obligations hereunder without the prior written consent of the other parties, provided that Parent or Purchaser may assign its rights hereunder to one or more other Affiliates of Parent or Purchaser.. Subject to the preceding sentence, this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors. Any purported assignment in violation of this Agreement will be void ab initio . | 7Assignments
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Each Issuing Bank agrees that it shall not permit any issuance, amendment, renewal or extension of a Letter of Credit to occur unless it shall have given to the Administrative Agent written notice thereof required under paragraph (m) of this Section. | 65Notices
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Upon satisfaction of the conditions set forth herein, a closing shall occur at the principal offices of the Company, or such other location as the parties shall mutually agree. At closing, Holder shall deliver a duly executed copy of this Agreement acknowledging his or its irrevocable waiver of all of the anti-dilution adjustment provisions of the Unit Purchase Agreement, including Section 6.13.1 of the Unit Purchase Agreement and the 2013 B Warrant representing the Exchange Securities to the Company and the Company shall deliver to such Holder a certificate evidencing the Common Stock and the new Warrant, constituting the Securities, in the name of the Holder and in the amounts as indicated on Column 3 of Schedule A annexed hereto. Upon closing, any and all obligations of the Company to Holder under the Exchange Securities shall be fully satisfied, the certificates evidencing the Exchange Securities shall be cancelled and Holder will have no remaining rights, powers, privileges, remedies or interests under the Exchange Securities. | 18Closings
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Notices and all other communications provided for in this Agreement shall be in writing and shall be deemed to have been duly given when personally delivered or when mailed by United States certified mail, return receipt requested, or by overnight courier, postage prepaid, to the Company at its corporate headquarters address, to the attention of the Secretary of the Company, or to Executive at the home address most recently communicated by Executive to the Company in writing. | 65Notices
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Except as set forth on Schedule 3.1(j) , there is no action, suit, inquiry, notice of violation, proceeding or investigation pending or, to the knowledge of the Company, threatened against or affecting the Company, any Subsidiary or any of their respective properties, or against or affecting the Company’s current or former officers or directors in their capacity as such, before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign) (collectively, an “ Action ”) which (i) adversely affects or challenges the legality, validity or enforceability of any of the Transaction Documents or the Securities or (ii) could, if there were an unfavorable decision, have or reasonably be expected to result in a Material Adverse Effect. Neither the Company nor any Subsidiary, nor any director or officer thereof, is or has been the subject of any Action involving a claim of violation of or liability under federal or state securities laws or a claim of breach of fiduciary duty. There has not been, and to the knowledge of the Company, there is not pending or contemplated, any investigation by the Commission involving the Company or any current or former director or officer of the Company. The Commission has not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company or any Subsidiary under the Exchange Act or the Securities Act. | 58Litigations
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Notwithstanding any provision of the Plan, with respect to any Performance Award that is intended to qualify as Performance‑Based Compensation, the Committee may adjust downwards, but not upwards, the cash or number of Shares payable pursuant to such Award, and the Committee may not waive the achievement of the applicable performance measures except in the case of the death or disability of the Participant or a change in control of the Company. | 0Adjustments
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Capitalized terms used but not defined in the Notice and these Terms and Conditions shall have the meanings set forth in the Plan. | 28Defined Terms
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Each Obligor shall keep accurate and complete records of its Equipment, including kind, quality, quantity, cost, acquisitions and dispositions thereof. | 73Records
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Except as otherwise permitted under Section 9.13 of the Credit Agreement, without the prior written consent of the Administrative Agent, no Pledgor shall file or suffer to be on file, or authorize or permit to be filed or to be on file, in any jurisdiction, any financing statement or like instrument with respect to the Collateral in which the Administrative Agent is not named as the sole secured party for the benefit of the Lenders. | 57Liens
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The execution, delivery and performance by each Company of this Agreement and the other Transaction Documents to which it is a party, the issuance and sale of the Securities and the consummation by it of the transactions contemplated hereby and thereby do not and will not: (i) conflict with or violate any provision of that Company’s or any Subsidiary’s certificate or articles of incorporation, bylaws or other organizational or charter documents; (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, result in the creation of any Lien (except Liens in favor of the Purchasers) 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 such 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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The Company shall be responsible for the payment of any placement agent’s fees, financial advisory fees, transfer agent fees, DTC (as defined below) fees or broker’s commissions (other than for Persons engaged by any Buyer) relating to or arising out of the transactions contemplated hereby. The Company shall pay, and hold each Buyer harmless against, any liability, loss or expense (including, without limitation, reasonable attorneys’ fees and out-of-pocket expenses) arising in connection with any claim relating to any such payment. Except as otherwise set forth in the Transaction Documents, each party to this Agreement shall bear its own expenses in connection with the sale of the Securities to the Buyers. | 42Fees
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Within thirty (30) days after the submission of reasonable supporting documentation by Executive and in accordance with the Company’s expense reimbursement policy, the Company shall reimburse Executive for all reasonable and customary business, travel, and entertainment expenses incurred by Executive in the course of and pursuant to the business of the Company. In addition, the Company shall reimburse Executive for reasonable travel expenses Executive incurs in traveling from Executive’s residence in Arizona to Cape Coral, Florida from time to time and for reasonable temporary living expenses Executive incurs for room, board and transportation in the Cape Coral, FL area. | 41Expenses
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This Agreement shall be effective as of the date hereof and shall continue in effect until and shall terminate upon the earliest to occur of (a) the sale or merger of the Company; (b) the Management Shareholders beneficially owning in the aggregate fewer than twenty-five percent (25%) of the Shares owned as of the Effective Date; (b) termination of this Agreement in accordance with Section 4.6 ; or (c) the fifth (5 th ) anniversary of this Agreement. | 89Terms
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This Agreement shall not be construed against either Party, and no consideration shall be given or presumption made on the basis of who drafted the Agreement or any particular provision hereof or who supplied the form of this Agreement. In construing the Agreement, (i) examples shall not be construed to limit, expressly or by implication, the matter they illustrate, (ii) the connectives “and,” “or,” and “and/or” shall be construed either disjunctively or conjunctively so as to construe a sentence or clause most broadly and bring within its scope all subject matter that might otherwise be construed to be outside of its scope; (iii) the word “includes” and its derivatives means “includes, but is not limited to” and corresponding derivative expressions, (iv) a defined term has its defined meaning throughout the Agreement, whether it appears before or after the place where it is defined, and (v) the headings and titles herein are for convenience only and shall have no significance in the interpretation hereof. | 23Construction
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Except for normal restaurant or nightclub inspections conducted by a Governmental Authority in the Ordinary Course and the Proceedings set forth on Schedule 4.12 of the Disclosure Schedule, there is not, and since December 31, 2013 there has not been, any Proceeding pending against, or, to the Knowledge of the Acquired Entities, threatened against or affecting, such Acquired Entity or any of its Subsidiaries before (or, in the case of threatened Proceedings, would be before) or by any Governmental Authority or arbitrator that would reasonably be expected to be, individually or in the aggregate, Material. Except for normal restaurant or nightclub inspections conducted by a Governmental Authority in the Ordinary Course and the Proceedings set forth on Schedule 4.12 of the Disclosure Schedule, no Acquired Entity and none of its Subsidiaries has received since December 31, 2013 any notice, Order, complaint or other written communication from any Governmental Authority that it is not in compliance with any Applicable Law, or that it is subject to any obligation to undertake, or to bear all or any portion of the cost of, any corrective or response action that would reasonably be expected to be, individually or in the aggregate, Material. Neither any Acquired Entity nor any Subsidiary of an Acquired Entity is, or since December 31, 2013 has been, operating under or subject to any Order that would reasonably be expected to be, individually or in the aggregate, Material. | 58Litigations
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The Company’s obligations under this Agreement shall be subject to the satisfaction of all applicable withholding requirements including those related to federal, state and local income and Service taxes (the “ Required Withholding ”). The Company may withhold an appropriate number of shares from the Common Stock that would otherwise have been delivered to the Participant (with respect to the settlement of this Award) necessary to satisfy the Participant’s Required Withholding, and deliver the remaining shares of Common Stock (or cash in lieu of fractional shares) to the Participant, unless the Participant has made arrangements with the Company for the Participant to deliver to the Company cash, check, other available funds or shares of previously owned Common Stock for the full amount of the Required Withholding by 5:00 p.m. Central Standard Time on the date an amount is included in the income of the Participant. The amount of the Required Withholding and the number of shares to satisfy the Participant’s Required Withholding shall be based on the Fair Market Value of the shares on the date prior to the applicable date of income inclusion. | 99Withholdings
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Sections 6 through 25, 27 and 28 shall continue to be in full force following the termination of the Employment Period. | 85Survival
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The Buyer has the requisite power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. The execution, delivery and performance by the Buyer of this Agreement, and the consummation of the transactions contemplated hereby, have been duly authorized by all necessary action, and no other action on the part of the Buyer is necessary to authorize this Agreement or to consummate the transactions contemplated hereby (other than compliance with the filing and notice requirements set forth in Section 5.3(b)(i)). This Agreement has been duly executed and delivered by the Buyer and, assuming the due authorization, execution and delivery by each of the other parties hereto, constitutes a legal, valid and binding obligation of the Buyer enforceable against the Buyer in accordance with its terms, except as limited by (a) bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar Laws relating to creditors’ rights generally, and (b) general principles of equity, whether such enforceability is considered in a proceeding in equity or at Law. | 10Authorizations
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If any provision of this Agreement is held by an arbitrator or a court of competent jurisdiction to be unenforceable under applicable law, then such provision shall be excluded from this Agreement and the remainder of this Agreement shall be interpreted as if such provision were so excluded and shall be enforceable in accordance with its terms; provided, however, that in such event this Agreement shall be interpreted so as to give effect, to the greatest extent consistent with and permitted by applicable law, to the meaning and intention of the excluded provision as determined by such an arbitrator or court of competent jurisdiction. | 79Severability
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This Agreement constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes and cancels any and all prior agreements and understandings, both written and oral, among them relating to the subject matter hereof, except as otherwise specifically provided herein. | 38Entire Agreements
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None of the Agreement, nor any Compound, any Original Drug Product or Additional Compound, or any rights to any Compound or Additional Compound, may be transferred or assigned by Vertex without the prior written consent of CFFT, except that, Vertex may transfer all of its rights in the Agreement and all Compounds, Original Drug Products, and Additional Compounds, but only if the transferee or assignee executes and delivers to CFFT an agreement to assume all of Vertex’s obligations under the Agreement. CFFT may transfer or assign its rights under the Agreement solely as provided in the Agreement. RP may not assign or transfer its rights under this Amendment No. 7. | 7Assignments
|
In the event Client or its designee rejects any or all of a shipment for Nonconformity resulting from CRL’s breach of this Agreement, or its negligence or willful misconduct in performance of its obligations, then CRL will promptly, at Client’s option, (a) replace the Nonconforming Drug Product with Drug Product that meets the Specifications, the Purchase Order and the other requirements set forth under this Agreement, at CRL’s cost, or (b) refund Client for the invoice price of any amounts paid in respect of the Nonconforming Drug Product. | 75Remedies
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Except as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect, the shares of capital stock or other ownership interests of all Significant Subsidiaries of the Borrower are owned by the Borrower, directly or indirectly, free and clear of all Liens other than Liens permitted under Section 6.02 and, in the case of such Significant Subsidiaries that are corporations, such shares of capital stock are fully paid and non-assessable. | 83Subsidiaries
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If the Executive has incurred a Disability, the Company may give the Executive written notice of its intention to terminate the Executive’s employment. In that event, the Executive’s employment with the Company, and the Term of this Agreement, shall terminate effective on the date specified in such notice. | 30Disability
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The grant and vesting of Restricted Stock Units and the obligation of the Company to issue shares of Stock under this Agreement are subject to all applicable federal and state laws, rules and regulations, including those related to disclosure of financial and other information to the Participant and to approvals by any government or regulatory agency as may be required. The Company shall not be required to issue or deliver any certificates for shares of Stock prior to (A) the listing of such shares on any stock exchange on which the Stock may then be listed and (B) the completion of any registration or qualification of such shares under any federal or state law, or any rule or regulation of any government body which the Company shall, in its sole discretion, determine to be necessary or advisable. | 19Compliance With Laws
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As of the Restatement Date, Annex 6.4 contains a complete and correct list and description of the Borrower’s and each Subsidiary’s jurisdiction of organization and ownership structure. As of the Restatement Date, the Borrower has no Subsidiaries except as shown on Annex 6.4. | 66Organizations
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Section 2.14 of the Disclosure Schedule lists each insurance policy (including fire, theft, casualty, general liability, workers compensation, business interruption, environmental, product liability and automobile insurance policies and bond and surety arrangements) to which Acquiree or any Acquiree Subsidiary is a party. Such insurance policies are of the type and in amounts customarily carried by organizations conducting businesses or owning assets similar to those of Acquiree or any Acquiree Subsidiary. There is no material claim pending under any such policy as to which coverage has been questioned, denied or disputed by the underwriter of such policy. All premiums due and payable under all such policies have been paid, Purchaser shall not be liable for retroactive premiums or similar payments, both Acquiree and any Acquiree Subsidiary is otherwise in compliance in all material respects with the terms of such policies. Acquiree has no knowledge of any threatened termination of, or material premium increase with respect to, any such policy. Each such policy will continue to be enforceable and in full force and effect immediately following the Effective Time in accordance with the terms thereof as in effect immediately prior to the Effective Time. | 51Insurances
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All issues and questions concerning the construction, validity, interpretation and enforceability of this Agreement or the transactions contemplated hereby and the exhibits and schedules hereto, and all claims and disputes arising hereunder or thereunder or in connection herewith or therewith, whether purporting to sound in contract or tort, or at law or in equity, shall be governed by, and construed in accordance with, the Laws of the State of New York, without giving effect to any choice of law or conflict of law rules or provisions (whether of the State of New York or any other jurisdiction) that would cause the application of the Laws of any jurisdiction other than the State of New York. | 47Governing Laws
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Each Party shall provide to the other Party prompt written notice of any actual or threatened infringement of the Product Trademarks in the Territory and of any actual or threatened claim that the use of the Product Trademarks in the Territory violates the rights of any Third Party, in each case, of which such Party becomes aware. | 65Notices
|
For purposes of this Section 3.01 , “ Requirements of Law Governmental Rules ” shall include FATCA. | 46General
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The Company has filed all reports, schedules, forms, statements and other documents required to be filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the one year preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such material) (the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, together with the Registration Statement, Prospectus and the Prospectus Supplement, being collectively referred to herein as the “ SEC Reports ”) on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As of their respective dates, the SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The financial statements of the Company included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations of the Commission with respect thereto as in effect at the time of filing. Such financial statements have been prepared in all material respects in accordance with United States generally accepted accounting principles applied on a consistent basis during the periods involved (“ GAAP ”), except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements do not contain all items required by GAAP, and fairly present in all material respects the financial position of the Company and its consolidated Subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments. | 43Financial Statements
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The Plan, the Grant Notice and this Agreement constitute the entire agreement of the parties and supersede in their entirety all oral, implied or written promises, statements, understandings, undertakings and agreements between the Company and Holder with respect to the subject matter hereof, including without limitation, the provisions of any offer letter regarding equity awards to be awarded to Holder by the Company, or any other oral, implied or written promises, statements, understandings, undertakings or agreements by the Company or any of its representatives regarding equity awards to be awarded to Holder by the Company. | 38Entire Agreements
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This instrument, together with the Non-Compete and Solicitation Agreement, contains the entire agreement of the parties hereto with respect to the subject matter hereof and supersedes all prior agreements or understandings between the parties hereto relating to the subject matter hereof. This Agreement may not be changed orally but only by an agreement in writing signed by the Employee and the Employers. Employee acknowledges that each of the Employers is subject to supervision and regulation by bank regulatory agencies. If, at the time any payment would otherwise be made to Employee under this Agreement, such payment is prohibited or limited by any applicable statute or regulation, including, without limitation, the Federal Deposit Insurance Act and 12 C.F.R. Part 359 (Golden Parachute and Indemnification Payments), or by order of any such bank regulatory agency, the amount of such payment shall be reduced to the largest amount, if any, that may be paid at such time consistently with such statute, regulation, or order. Employee agrees that compliance with any such statute, regulation, or order, including any resulting reduction or elimination of any payment specified under this Agreement, shall not constitute a breach of this Agreement by the Employers. | 38Entire Agreements
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This agreement constitutes the legal, valid, and binding obligation of the Maker enforceable in accordance with its terms, and no other person is required to execute this agreement to make the same the legal, valid, and binding obligation of the Maker enforceable in accordance with its terms. | 9Authority
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ESLI agrees that all copyrightable material, notes, records, drawings, designs, inventions, improvements, developments, discoveries and trade secrets conceived, discovered, developed or reduced to practice by ESLI, solely or in collaboration with Kulr or others, during the term of this Agreement that relate in any manner to thermal management, thermal storage, heat dissipation or related technologies (collectively, “ Inventions ”), are the sole property of Kulr. ESLI also agrees to assign (or cause to be assigned) and hereby assigns fully to Kulr all Inventions and any copyrights, patents, mask work rights or other intellectual property rights relating to all Inventions. | 7Assignments
|
If a valid claim or request under this Agreement is not paid by the Company or on its behalf within 30 days after a written claim or request has been received by the Company, the Executive may at any time thereafter bring suit against the Company to recover the unpaid amount of the claim or request and, if successful in whole or in part, the Executive shall be further entitled to be paid the expenses of prosecuting such suit. All obligations for indemnification hereunder shall be subject to, and paid in accordance with, applicable Delaware law. | 37Enforcements
|
The Closing shall take place on the Closing Date at the office of Nova Dongguan or at such other location as agreed to by the parties. | 18Closings
|
It is specifically understood and agreed that any breach of the provisions of this Section 11 is likely to result in irreparable injury to the Company or the Executive, as the case may be, and that the remedy at law alone will be an inadequate remedy for such breach, and that, in addition to any other remedy it may have, each party shall be entitled to seek the specific performance of this Agreement by the other party and to seek both temporary and permanent injunctive relief (to the extent permitted by law). | 75Remedies
|
Damages in the event of breach of this Agreement by a party hereto may be difficult, if not impossible, to ascertain, and it is therefore agreed that each party, in addition to and without limiting any other remedy or right it may have, will have the right to an injunction or other equitable relief in any court of competent jurisdiction, enjoining any such breach, and enforcing specifically the terms and provisions hereof, and each of the parties hereto hereby waives any and all defenses it may have on the ground of lack of jurisdiction or competence of the court to grant such an injunction or other equitable relief. The existence of this right will not preclude any such party from pursuing any other rights and remedies at law or in equity that such party may have. | 81Specific Performance
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If within the period ending one year after a Change in Control, (i) the Bank terminates Executive’s employment without Cause, or (ii) Executive voluntarily terminates her employment With Good Reason, the Bank will, within ten calendar days of the termination of Executive’s employment, make a lump-sum cash payment to her equal to one times Executive’s current annual base salary. The cash payment made under this Section 11(b) shall be made in lieu of any payment also required under Section 10(f) of this Agreement because of Executive’s termination of employment; however, Executive’s rights under Section 10(f) are not otherwise affected by this Section 11. Following termination of employment, executive will also continue to participate in any benefit plans of the Bank that provide medical, dental and life insurance coverage upon terms no less favorable than the most favorable terms provided to senior executives. If the Bank cannot provide such coverage because Executive is no longer an employee, the Bank will provide Executive with comparable coverage on an individual basis or the cash equivalent. The medical, dental and life insurance coverage provided under this Section 11(b) shall cease upon the earlier of: (i) Executive’s death; (ii) Executive’s employment by another employer other than one of which he is the majority owner; or (iii) eighteen (18) months after his termination of employment. Notwithstanding the foregoing, in accordance with 12 C.F.R. Part 359, in no event will the value of the cash severance benefits plus the continuation of insurance benefits provided to the Executive under this paragraph (b) exceed twelve months of the Executive’s base salary at the time of her termination of employment. | 88Terminations
|
The Participant acknowledges that during his or her employment with the Company, he or she has and will necessarily become informed of, and have access to, the Confidential Information of the Company, and that the Confidential Information, even though it may be contributed, developed or acquired in whole or in part by the Participant is the Company’s exclusive property to be held by the Participant in trust and solely for the Company’s benefit. Accordingly, except as required by law, the Participant shall not, at any time, either during or subsequent to his or her employment, as applicable, use, reveal, report, publish, copy, transcribe, transfer or otherwise disclose to any person, corporation or other entity, any of the Confidential Information without the prior written consent of the Company, except to responsible officers and employees of the Company and its Subsidiaries and other responsible persons who are in a contractual or fiduciary relationship with the Company or one of its Subsidiaries and except for information that legally and legitimately is or becomes of general public knowledge from authorized sources other than the Participant. The Participant also agrees and understands that the Participant’s duties and obligations under any confidentiality and non-disclosure agreement signed in connection with the Participant’s employment with the Company, including the Confidentiality and Non-Solicitation Agreement, (collectively, the “Confidentiality Agreement”) will remain in full force and effect in accordance with its terms, and that a breach of the Confidentiality Agreement will also constitute a breach of this present RCA. To the extent the terms of the Confidentiality Agreement are inconsistent with the terms of this RCA, the provisions of this RCA will control. | 20Confidentiality
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