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Should any provision of this Restricted Share Agreement be held by a court of competent jurisdiction to be unenforceable, or enforceable only if modified, such holding shall not affect the validity of the remainder of this Restricted Share Agreement, the balance of which shall continue to be binding upon the parties hereto with any such modification (if any) to become a part hereof and treated as though contained in this original Restricted Share Agreement. Moreover, if one or more of the provisions contained in this Restricted Share Agreement shall for any reason be held to be excessively broad as to scope, activity, subject or otherwise so as to be unenforceable, in lieu of severing such unenforceable provision, such provision or provisions shall be construed by the appropriate judicial body by limiting or reducing it or them, so as to be enforceable to the maximum extent compatible with the applicable law as it shall then appear, and such determination by such judicial body shall not affect the enforceability of such provision or provisions in any other jurisdiction. | 79Severability
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Subject to Sections 10.1 and 10.3 , the parties agree to resolve any Dispute exclusively through binding arbitration conducted under the auspices of the American Arbitration Association (the “ AAA ”) pursuant to AAA’s Commercial Arbitration Rules presently in effect. The parties shall appoint an arbitrator with at least ten (10) years of experience as an attorney and experience in the medical diagnostics industry so as to better understand the legal, business and scientific issues addressed in the arbitration. Any arbitration hereunder shall be brought in San Diego, California. Unless agreed otherwise by the parties, the parties shall have thirty (30) days from the appointment of the arbitrator to present and/or submit their positions to the arbitrator, and the parties shall have a hearing before the arbitrator within ten (10) business days of such submission. Each party agrees to use reasonable efforts to make all of its current employees available, if reasonably needed, and agrees that the arbitrator may deem any party as “necessary.” The arbitrator shall hear evidence by each party and resolve each of the issues identified by the parties. The arbitrator shall be instructed and required to render a written, binding, non-appealable resolution and award on each issue which clearly states the basis upon which such resolution and award is made. The written resolution and award shall be delivered to the parties as expeditiously as possible, but in no event more than thirty (30) days after conclusion of the hearing, unless otherwise agreed to by the parties. The parties shall use all reasonable efforts to keep arbitration costs to a minimum. Each party must bear its own attorneys’ fees and associated costs and expenses. Each party agrees that, notwithstanding any provision of applicable law or of this Agreement, it will not request, and the arbitrators shall have no authority to award, punitive or exemplary damages against any party. | 6Arbitration
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If any provision of this Agreement is or becomes or is deemed to be invalid, illegal, or unenforceable in any jurisdiction or as to Employee or the Award, or would disqualify the Award under any law deemed applicable by the Committee, such provision will be construed or deemed amended to conform to the applicable laws, or if it cannot be construed or deemed amended without, in the determination of the Committee, materially altering the intent of this Agreement, such provision will be stricken as to such jurisdiction, and the remainder of this Agreement will remain in full force and effect. Headings are given to the Sections and subsections of this Agreement solely as a convenience to facilitate reference. Such headings will not be deemed in any way material or relevant to the construction or interpretation of this Agreement or any provision thereof and, in the event of any conflict, the text of this Agreement, rather than such titles or headings, will control. | 46General
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The Term of this Agreement shall begin as of the Effective Date and it shall continue through March 31, 2018 at which time it will terminate unless extended pursuant to this paragraph, and Executive will relinquish his seat on the Board of Directors of PHH Corporation at the expiration of the Term of this Agreement. The Term of this Agreement shall be subject to extension by mutual written agreement of the Parties, for a period of any length as they may mutually agree, in which case the Term will continue through the end of such extension. Notwithstanding the foregoing, the Term of this Agreement shall be terminated before the date it would otherwise expire if this Agreement is terminated pursuant to Section 3(b) hereof. | 89Terms
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To its knowledge, the Company owns or possesses sufficient legal rights to all patents, trademarks, service marks, tradenames, copyrights, trade secrets, licenses, information and proprietary rights and processes necessary for its business without any conflict with, or infringement of, the rights of others. The Company is not a party to any licenses or agreements of any kind with respect to the patents, trademarks, service marks, trade names, copyrights, trade secrets, licenses, information, proprietary rights and processes or intellectual property rights of any other person or entity, in each case, other than licenses or other agreements entered into in the ordinary course of business. The Company has not received any communications alleging that the Company has violated or, by conducting its business, would violate any of the patents, trademarks, service marks, tradenames, copyrights, trade secrets or other proprietary rights or processes of any other person or entity. Each employee, consultant and officer of the Company has executed an agreement with the Company regarding confidentiality and proprietary information and assignment of intellectual property. The Company is not aware that any of its employees or consultants is in violation thereof, and the Company will use its best efforts to prevent any such violation. | 53Intellectual Property
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In consideration of the amendments contained herein, the Borrower hereby waives and releases each of the Lenders, the Agent and the Issuing Bank from any and all claims and defenses, known or unknown as of the date hereof and as of the First Amendment Effective Date, with respect to the Credit Agreement and the other Credit Documents and the transactions contemplated thereby. | 74Releases
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The representations, warranties, agreements and covenants shall survive the Closing. The Investor shall be responsible only for its own representations, warranties, agreements and covenants hereunder. | 85Survival
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During the Term, the Executive shall be employed by the Company as President and Chief Executive Officer, and, as such, the Executive shall faithfully perform for the Company the duties of said office and shall perform such other duties of an executive, managerial or administrative nature as shall be specified and designated from time to time by the Board of Directors of the Company (the “Board”). In addition, during the Term, the Company shall nominate the Executive as a member of the Board, and the Executive agrees to serve as a member of the Board if duly elected by the shareholders of the Company. The Executive shall devote substantially all of his business time and effort to the performance of his duties hereunder; provided, however, that the Executive may engage in other activities for the Executive’s own account while employed hereunder, including, without limitation, charitable, community and other business activities (including, without limitation, the ownership of those properties listed on Exhibit A), provided that such other activities do not materially interfere with the performance of the Executive’s duties hereunder. | 32Duties
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The execution, delivery and performance by Ecoark and Zest of this Agreement and the consummation of the transactions contemplated hereby, do not and will not: (a) conflict with or result in a violation or breach of, or default under, any provision of the certificate of incorporation, by-laws or other organizational documents of either Zest or Ecoark; (b) conflict with or result in a violation or breach of any provision of any applicable law; or (c) require any additional consents, notices or other actions. No consent, approval, permit, governmental order, declaration or filing with, or notice to, any governmental authority is required by or with respect to Ecoark and Zest in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby. | 61No Conflicts
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Any and all notices or other communications or deliveries to be provided by the Holder hereunder, including, without limitation, any Notice of Conversion, shall be in writing and delivered personally, by facsimile, by email attachment, or sent by a nationally recognized overnight courier service, addressed to the Company, at the address set forth above, or such other facsimile number, email address, or address as the Company may specify for such purposes by notice to the Holder delivered in accordance with this Section 10(a). Any and all notices or other communications or deliveries to be provided by the Company hereunder shall be in writing and delivered personally, by facsimile, by email attachment, or sent by a nationally recognized overnight courier service addressed to each Holder at the facsimile number or email address or address of the Holder appearing on the books of the Company, or if no such facsimile number or email attachment or address appears on the books of the Company, at the principal place of business of such Holder, as set forth in the Purchase Agreement. Any notice or other communication or deliveries hereunder shall be deemed given and effective on the earliest of (i) the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number or email attachment to the email address set forth on the signature pages attached hereto prior to 5:30 p.m. (New York City time) on any date, (ii) the next Trading Day after the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number or email attachment to the email address set forth on the signature pages attached hereto on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (iii) the second Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service or (iv) upon actual receipt by the party to whom such notice is required to be given. | 65Notices
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This Separation Agreement may be executed in counterparts, each of which shall be an original. | 26Counterparts
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The terms and provisions of this Agreement (including the Exhibits hereto, which are hereby incorporated by reference herein) constitute the entire agreement between the Trustee and the other parties hereto with respect to the subject matter hereof. The actions of the Trustee shall be governed solely by this Agreement. | 38Entire Agreements
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Each Borrower hereby represents and warrants to Agent that (a) the execution, delivery and performance of this Amendment and any and all Other Documents executed and/or delivered in connection herewith have been authorized by all requisite corporate action on the part of each Borrower and will not violate the Articles or Certificate of Incorporation or By-Laws or the Certificate of Formation or Operating Agreement of any Borrower; (b) the representations and warranties contained in the Credit Agreement, as amended hereby, and the Other Documents are true and correct on and as of the date hereof and on and as of the date of execution hereof as though made on and as of each such date; (c) no Default or Event of Default under the Credit Agreement, as amended hereby, has occurred and is continuing, unless such Default or Event of Default has been specifically waived in writing by Agent; and (d) each Borrower is in full compliance with all covenants and agreements contained in the Credit Agreement and the Other Documents, as amended hereby. | 76Representations
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Subject to the terms and conditions set forth in this Agreement, the Company hereby offers, and the Executive hereby accepts, employment. | 35Employment
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This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties. The exchange of a fully executed Agreement (in counterparts or otherwise) by facsimile or by electronic delivery in .pdf format shall be sufficient to bind the parties to the terms and conditions of this Agreement. | 26Counterparts
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Each Interest will vest as set forth in the applicable Award Agreement. | 95Vesting
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Any notice or request given under this Agreement shall be in writing addressed to the other Party at (i) for Vendor, at the address listed on the first page of this Agreement and (ii) for PetSmart Attn: General Counsel, 19601 N. 27th Avenue, Phoenix, Arizona U.S.A. 85027. Any notice shall be deemed to have been received (i) if sent by certified or registered mail, postage prepaid, return receipt requested, the fifth (5th) business day after posting; (ii) if sent by a major US or international document courier, the second (2nd) business day after posting or at the delivery time recorded by the courier service, whichever is later; or (iii) if sent by electronic mail or by a facsimile machine, the next business day after receipt of confirmation following transmission. | 65Notices
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The Lender shall have received all fees required to be paid, and all expenses required to be reimbursed for which invoices have been presented (including the reasonable fees and expenses of legal counsel), on or before the Effective Date. All such amounts will be paid with proceeds of Loans made on the Effective Date and will be reflected in the funding instructions given by the Borrower to the Lender on or before the Effective Date. | 42Fees
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Contractor will pay when due all costs, expenses, taxes and liabilities that Contractor incurs in connection with Contractor’s performance under this Agreement. | 41Expenses
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This Amendment shall be deemed to be a contract made under the laws of the State of Delaware and for all purposes shall be governed by and construed in accordance with the laws of said State applicable to contracts to be made and performed entirely within said State. | 47Governing Laws
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Unless otherwise provided herein or in the Credit Agreement, any notice or other communication herein required or permitted to be given shall be given in the manner and become effective as set forth in the Credit Agreement, as to the Pledgor, addressed to it at its address set forth in the Credit Agreement and as to the Administrative Agent, addressed to it at the address set forth in the Credit Agreement, or in each case at such other address as shall be designated by such party in a written notice to the other party complying as to delivery with the terms of this Section 8.6 . | 65Notices
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This Section 0 shall survive the Closing. | 85Survival
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Each party’s obligations under this Section 5.9 shall survive any assignment by Lender of rights or obligations hereunder, termination of the Commitments, and any repayment, satisfaction, discharge or Full Payment of any 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 13.2 of the Credit Agreement (whether or not then in effect), as such address may be changed by written notice to the Agent and the Borrower. All communications and notices hereunder to any Pledgor or Grantor shall be given to it in care of the Borrower, with such notice to be given as provided in Section 13.2 of the Credit Agreement (whether or not then in effect). | 65Notices
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THIS AGREEMENT IS PERFORMABLE IN THE STATE OF NEW YORK AND SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF SUCH STATE. CONTRIBUTOR AND THE PARTNERSHIP HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT SITTING IN THE STATE AND COUNTY OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND HEREBY IRREVOCABLY AGREE THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING SHALL BE HEARD AND DETERMINED IN A STATE OR FEDERAL COURT SITTING IN THE STATE AND COUNTY OF NEW YORK. THE PARTNERSHIP AND EACH CONTRIBUTOR AGREE THAT THE PROVISIONS OF THIS SECTION 11.11 SHALL SURVIVE THE CLOSING OR THE EARLY TERMINATION OF THIS AGREEMENT. | 4Applicable Laws
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The escrow (the “ Escrow ”) for the consummation of this transaction shall be established with Escrow Holder at the address indicated in Section 15.1 hereof by the deposit of an original signed copy of this Agreement with Escrow Holder contemporaneously with the execution hereof. This Agreement shall constitute both an agreement among Buyer and Seller and escrow instructions for Escrow Holder. If Escrow Holder requires separate or additional escrow instructions which it deems necessary for its protection, Seller and Buyer hereby agree promptly upon request by Escrow Holder to execute and deliver to Escrow Holder such separate or additional escrow instructions (the “ Additional Instructions ”). In the event of any conflict or inconsistency between this Agreement and the Additional Instructions, this Agreement shall prevail and govern, and the Additional Instructions shall so provide. The Additional Instructions shall not modify or amend the provisions of this Agreement unless otherwise agreed to in writing by Seller and Buyer. | 18Closings
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The Closing shall take place on the date of this Agreement, or such other time, place and date as may be mutually agreed upon by the parties hereto. The Closing shall be held at the offices of Buyer’s counsel or such other place as shall be mutually agreed upon by Buyer and the Company. The date of the Closing is sometimes herein referred to as the “ Closing Date ”. By mutual agreement of the parties, the Closing may be alternatively accomplished by facsimile transmission to the respective offices of legal counsel for the parties of the requisite documents, duly executed where required, with originals to be delivered by overnight courier service on the next business day following the Closing. | 18Closings
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Borrower agrees to indemnify, defend and hold Lender harmless from and against any loss, cost or expense (including interest, penalties, reasonable attorneys’ fees and amounts paid in settlement) caused by Borrower’s negligence, breach or wrongful actions arising out of or based upon the Loan Documents or the Loan, except and to the extent caused by Lender’s negligence, breach, wrongful actions, gross negligence or willful misconduct. | 49Indemnifications
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Each of the Collateral Agent and the Purchasers agrees to take normal and reasonable precautions to maintain the confidentiality of any information relating to the Issuer or any of its Subsidiaries or any of their respective businesses, to the extent designated in writing as confidential and provided to it by the Issuer or any of its Subsidiaries, other than any such information that is available to the Collateral Agent or any Purchaser on a non-confidential basis prior to disclosure by the Issuer or any of its Subsidiaries, except that such information may be disclosed (i) to any Related Party of the Collateral Agent or any such Purchaser including, without limitation, accountants, legal counsel and other advisors (and to other persons authorized by the Collateral Agent or a Purchaser to organize, present or disseminate such information in connection with disclosures otherwise made in accordance with this Section 10.11 ), (ii) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (iii) to the extent requested by any regulatory agency or authority purporting to have jurisdiction over it (including any self-regulatory authority such as the National Association of Insurance Commissioners), (iv) to the extent that such information becomes publicly available other than as a result of a breach of this Section, or which becomes available to the Collateral Agent, any Purchaser or any Related Party of any of the foregoing on a non-confidential basis from a source other than the Issuer or any of its Subsidiaries, (v) in connection with the exercise of any remedy hereunder or under any other Note Documents or any suit, action or proceeding relating to this Agreement or any other Note Documents or the enforcement of rights hereunder or thereunder, (vi) subject to execution by such Person of an agreement containing provisions substantially the same as those of this Section, to (A) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement, or (B) any actual or prospective party (or its Related Parties) to any swap or derivative or other transaction under which payments are to be made by reference to the Issuer and its obligations, this Agreement or payments hereunder, (vii) to any rating agency, (viii) to the CUSIP Service Bureau or any similar organization, (ix) to any Purchaser’s financing sources; provided that, prior to any disclosure, such financing source is informed of the confidential nature of such information, or (x) with the consent of the Issuer. Any Person required to maintain the confidentiality of any information as provided for in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such information as such Person would accord its own confidential information. Furthermore, the Note Parties and the Purchasers shall not, without the prior written consent of the applicable Purchaser, in each instance, (a) use in advertising, publicity, or otherwise the name of such Purchaser or any of its Affiliates, or any partner or employee of such Purchaser or any of its Affiliates, or (b) represent that any product or any service provided has been approved or endorsed by any Purchaser, or any of its Affiliates. In the event of any conflict between the terms of this Section and those of any other Contractual Obligation entered into with any Note Party (whether or not a Note Document), the terms of this Section shall govern. | 20Confidentiality
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On and after the date hereof, the Grantor will cause to be done, executed, acknowledged and delivered such further acts, conveyances and assurances as the Trustee shall reasonably request for accomplishing the purposes of this Aircraft Security Agreement; provided that any instrument or other document so executed by the Grantor will not expand any obligations or limit any rights of the Grantor in respect of the transactions contemplated by this Aircraft Security Agreement. | 45Further Assurances
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Subject to Section 4(f), Restricted Stock and Restricted Stock Units granted to a Participant under the Plan shall be subject to a Restriction Period as specified in the Award Agreement, provided that the Participant continuously provides Service through such vesting date. The Committee in its discretion may provide that the Restriction Period on Restricted Stock and Restricted Stock Units shall lapse, in whole or in part, upon the achievement of one or more Performance Criteria or other performance conditions, during a Performance Period selected by the Committee. In the case of an Award to any Executive Officer of Restricted Stock or Restricted Stock Units that are intended to qualify as “performance-based compensation” under Section 162(m) of the Code, such Award shall be (i) solely subject to Performance Criteria selected from among the criteria set forth in Section 5(c) of the Plan, (ii) subject to the same restrictions and limitations applicable to Awards of Performance Shares under Section 5(d) of the Plan and (iii) subject to the certification required under Section 5(e) of the Plan. | 95Vesting
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Except for (x) the matters described on Schedule 4.31 and (y) any other conditions, events or transactions that collectively could not reasonably be expected to result in a Material Adverse Change: (a) allow or cause or permit any ERISA Affiliate to allow any condition to exist in connection with any Pension Plan subject to Title IV of ERISA which could reasonably be expected to constitute grounds for the PBGC to institute proceedings to have such Pension Plan terminated or a trustee appointed to administer such Pension Plan; and (b) neither Borrower nor any Subsidiary shall engage in, or permit to exist or occur, or permit any ERISA Affiliate to engage in, or permit to exist or occur, any other condition, event or transaction with respect to any Pension Plan which could result in a Loan Party or any ERISA Affiliate incurring any liability, fine or penalty. | 39Erisa
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The Company and the Subsidiaries are insured by insurers against such losses and risks and in such amounts (including, but not limited to, directors and officers insurance coverage) as the Company and its Subsidiaries reasonably believe are adequate for the conduct of their business and is customary for companies of similar size engaged in similar businesses in similar industries. | 51Insurances
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The separation benefits provided for in Section 1 shall be in lieu of any other severance, separation or termination pay to which the Executive may be entitled under any Company severance or termination plan, program, practice (whether written or unwritten) or agreement. Except as otherwise provided herein, the Executive’s entitlement to any other compensation or benefits shall be determined in accordance with the terms and conditions of the Company’s employee benefit plans (other than severance or termination plans, programs, practices or agreements) and other applicable programs, policies and practices then in effect. | 12Benefits
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The Company will, and will cause each of the Subsidiaries to, execute any and all further documents, agreements and instruments, and take all further action that may be required under applicable law, or that the Required Lenders or the Administrative Agent may reasonably request, in order that the Guarantee Requirement shall be satisfied at all times. | 45Further Assurances
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Interest will accrue from the date hereof on the Principal amount at the rate of fifty-six one hundredths of a percent (0.56%) per annum until payment in full or until the conversion of the Principal pursuant to Section 2 of this Note. If the Principal is not converted pursuant to Section 2 of this Note, interest shall be paid with the Principal amount on the Maturity Date. If the Principal is converted pursuant to Section 2 of this Note, interest accrued through the Conversion Date shall be paid on the Conversion Date in accordance with Section 2 of this Note. | 54Interests
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This Waiver and Second Amendment, and all claims, disputes and matters arising hereunder or thereunder or related hereto or thereto, will be governed by, and construed in accordance with, the laws of the State of New York applicable to contracts executed in and to be performed entirely within that state. | 47Governing Laws
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There are no other agreements of any nature between the Employer and Executive with respect to the matters discussed in this Agreement, except as expressly stated herein, and in signing this Agreement, Executive is not relying on any agreements or representations, except those expressly contained in this Agreement. | 38Entire Agreements
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This Agreement may be terminated by any Purchaser, as to such Purchaser’s obligations hereunder only and without any effect whatsoever on the obligations between the Company and the other Purchasers, by written notice to the other parties, if the Closing has not been consummated on or before October 19, 2017; provided , however , that no such termination will affect the right of any party to sue for any breach by any other party (or parties). | 88Terminations
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Proceeds of the Loans may be used to finance the Borrower’s working capital needs and for general corporate purposes of the Borrower. Neither the Borrower nor any Subsidiary is engaged in the business of purchasing or selling margin stock or extending credit for the purpose of purchasing or carrying margin stock. | 92Use Of Proceeds
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Borrower will, do or cause to be done all things reasonably necessary (a) 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 (except as such would otherwise reasonably expire, be abandoned or permitted to lapse in the ordinary course of business), necessary or desirable in the normal conduct of its business except to the extent failure to maintain would not reasonably be expected to result in a Material Adverse Effect; provided , however , that the foregoing shall not prohibit any merger, consolidation, liquidation, dissolution or disposition permitted under this Agreement; and (b) to maintain all requisite authority to conduct its business in each jurisdiction in which its business is conducted, except, other than with respect to Borrower’s existence, to the extent such failure to do so would not reasonably be expected to have a Material Adverse Effect. | 40Existence
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The Company shall bear all fees and expenses attendant to the registration of the Registrable Securities pursuant to Section 4.1.1, but the Holders shall pay any and all underwriting commissions and the expenses of any legal counsel selected by the Holders to represent them in connection with the sale of the Registrable Securities. The Company agrees to use its reasonable best efforts to cause the filing required herein to become effective promptly and to qualify or register the Registrable Securities in such States as are reasonably requested by the Holder(s); provided , however , that in no event shall the Company be required to register the Registrable Securities in a State in which such registration would cause: (i) the Company to be obligated to register or license to do business in such State or submit to general service of process in such State, or (ii) the principal shareholders of the Company to be obligated to escrow their shares of capital stock of the Company. The Company shall cause any registration statement filed pursuant to the demand right granted under Section 4.1.1 to remain effective for a period of at least twelve (12) consecutive months after the date that the Holders of the Registrable Securities covered by such registration statement are first given the opportunity to sell all of such securities. The Holders shall only use the prospectuses provided by the Company to sell the shares covered by such registration statement, and will immediately cease to use any prospectus furnished by the Company if the Company advises the Holder that such prospectus may no longer be used due to a material misstatement or omission. Notwithstanding the provisions of this Section 4.1.2, the Holder shall be entitled to a demand registration under this Section 4.1.2 on only one (1) occasion and such demand registration right shall terminate on the fifth anniversary of the effectiveness of the registration statement in accordance with FINRA Rule 5110(f)(2)(H)(iv). | 89Terms
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Section 10 of the Purchase Agreement is incorporated by reference mutatis mutandis (substituting, for the avoidance of doubt, Argentia for Catterton). | 88Terminations
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Each Lender’s and the Credit Parties’ respective rights and remedies under this Agreement shall be cumulative and nonexclusive of any other rights and remedies which the Applicable Lender or any Credit Party may have under any other agreement, including the other Loan Documents, by operation of Law or otherwise. Recourse to the Collateral shall not be required. | 75Remedies
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In the event of (i) any dividend (other than regular cash dividends) or other distribution (whether in the form of cash, shares of Common Stock, other securities or other property), recapitalization, stock split, reverse stock split, reorganization, merger, consolidation, split-up, split-off, spin-off, combination, repurchase or exchange of shares of Common Stock or other securities of the Company, issuance of warrants or other rights to acquire shares of Common Stock or other securities of the Company, or other similar corporate transaction or event that affects the shares of Common Stock (including a Change in Control); or (ii) unusual or nonrecurring events affecting the Company, including changes in applicable rules, rulings, regulations or other requirements, that the Committee determines, in its sole discretion, could result in substantial dilution or enlargement of the rights intended to be granted to, or available for, Participants (any event in (i) or (ii), an “ Adjustment Event ”), the Committee shall, in respect of any such Adjustment Event, make such proportionate substitution or adjustment, if any, as it deems equitable, to any or all of (A) the Absolute Share Limit, or any other limit applicable under the Plan with respect to the number of Awards which may be granted hereunder; (B) the number of shares of Common Stock or other securities of the Company (or number and kind of other securities or other property) which may be issued in respect of Awards or with respect to which Awards may be granted under the Plan or any Sub-Plan; and (C) the terms of any outstanding Award, including, without limitation, (I) the number of shares of Common Stock or other securities of the Company (or number and kind of other securities or other property) subject to outstanding Awards or to which outstanding Awards relate; (II) the Exercise Price or Strike Price with respect to any Award; or (III) any applicable performance measures (including, without limitation, Performance Criteria and Performance Goals); provided , that in the case of any “equity restructuring” (within the meaning of the Financial Accounting Standards Board Accounting Standards Codification Topic 718 (or any successor pronouncement thereto)), the Committee shall make an equitable or proportionate adjustment to outstanding Awards to reflect such equity restructuring. | 46General
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Since December 31, 2015, there have been, and there are, no (a) civil, criminal or administrative actions, suits, claims, hearings, arbitrations, investigations or other proceedings pending or, to the knowledge of the Company, threatened against the Company or any of its subsidiaries that (i) relate to the Warrant or Warrant Shares, (ii) challenge the validity or enforceability of the Company’s obligations under this Agreement or the Transaction Documents to which the Company is or will be a party or (iii) would, individually or in the aggregate, reasonably be likely to have a Material Adverse Effect or (b) obligations or liabilities incurred in the ordinary course of business since December 31, 2016, obligations or liabilities of the Company or any of its subsidiaries, except for those that have not had, or would not, individually or in the aggregate, reasonably be likely to have, a Material Adverse Effect. Neither the Company nor any of its subsidiaries is a party to or subject to the provisions of any material judgment, order, writ, injunction, decree or award of any Governmental Entity. | 58Litigations
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The Borrower agrees to indemnify each Lender for, and to hold each Lender harmless from, any loss (other than the loss of Applicable Margin) or expense that such Lender may sustain or incur as a consequence of (a) default by the Borrower in making a conversion into or continuation of Eurodollar Loans after the Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (b) default by the Borrower in making any prepayment of or conversion from Eurodollar Loans after the Borrower has given a notice thereof in accordance with the provisions of this Agreement or (c) the making of a prepayment of Eurodollar Loans on a day that is not the last day of an Interest Period with respect thereto. A certificate as to any amounts payable pursuant to this Section submitted to the Borrower by any Lender shall be conclusive in the absence of manifest error. This covenant shall survive for 90 days after the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder. | 50Indemnity
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The execution, delivery and performance of this Agreement and the Ancillary Agreements to which Buyer or Buyer Guarantor is a party and the consummation of the Transactions do not (a) result in a violation of any Law or Order to which Buyer or Buyer Guarantor is subject, (b) conflict with or result in a violation of any provision of the certificate of incorporation, bylaws or other charter or organizational documents of Buyer or Buyer Guarantor or (c) conflict with, result in a material breach of, constitute a material default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice or consent under, any Contract to which Buyer or Buyer Guarantor is a party, or (d) result in the imposition of any Lien (other than Permitted Liens) upon any of the properties, rights or assets of Buyer or Buyer Guarantor, except, in the case of the immediately preceding clauses (c) and (d), to the extent that any such violation would not reasonably be expected to have an adverse effect on the ability of Buyer or Buyer Guarantor to consummate the Transactions. | 61No Conflicts
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In the event of any recapitalization, reclassification, forward or reverse split, reorganization, merger, consolidation, spinoff, combination, repurchase or exchange of Stock or other securities, Stock dividend or other special, large and non-recurring dividend or distribution (whether in the form of cash, securities or other property), liquidation, dissolution, or any other extraordinary or unusual event affecting the outstanding Stock as a class, then the Committee shall equitably adjust any or all of (i) the number and kind of shares of Stock reserved and available for Awards under Section 4(a) and 4(b), including shares reserved for ISOs and the number of shares which may be issued without regard to the vesting requirements set forth in Section 7(f), (ii) the number and kind of shares of outstanding Restricted Stock or other outstanding Awards in connection with which the shares have been issued, (iii) the number and kind of shares that may be issued in respect of other outstanding Awards, (iv) the maximum number and kind of shares of Stock for which any individual may receive Awards in any year, and (v) the exercise price, grant price or purchase price relating to any Award (or, if deemed appropriate, the Committee may make provision for a cash payment with respect to any outstanding Award), to preclude, to the extent practicable, the enlargement or dilution of rights and benefits under the Plan and such outstanding Awards; provided, however, that any fractional shares resulting from such adjustment shall be eliminated. In addition, the Committee is authorized to make adjustments in the terms and conditions of, and the criteria included in, Awards (including, without limitation, cancellation of unexercised or outstanding Awards (to the extent permitted by Section 9(f)(ii)), or substitution of Awards using stock of a successor or other entity) in recognition of unusual or nonrecurring events (including, without limitation, events described in the preceding sentence) affecting the Company, its Parent or any Subsidiary or the financial statements of the Company, its Parent or any Subsidiary, or in response to changes in applicable laws, regulations, or accounting principles. | 0Adjustments
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THIS THIRD Amendment AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS THIRD Amendment SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ITS PRINCIPLES OR RULES OF CONFLICT OF LAWS TO THE EXTENT SUCH PRINCIPLES OR RULES ARE NOT MANDATORILY APPLICABLE BY STATUTE AND WOULD REQUIRE OR PERMIT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION. | 47Governing Laws
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Each Party irrevocably waives the right to a trial by jury in connection with any matter arising out of this Agreement to the fullest extent permitted by applicable law. | 96Waiver Of Jury Trials
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THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES. THE TRUSTEE, THE COMPANY, AND ANY OTHER OBLIGOR IN RESPECT HEREOF AGREE TO SUBMIT TO THE JURISDICTION OF ANY UNITED STATES FEDERAL OR STATE COURT LOCATED IN THE BOROUGH OF MANHATTAN, IN THE CITY OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENTAL INDENTURE. | 47Governing Laws
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This Guaranty shall bind Guarantor and shall inure to the benefit of the Guarantied Party. | 13Binding Effects
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If this Lease is terminated pursuant to law or the provisions of Section 14.1, Tenant waives, to the extent permitted by applicable law, (a) any right of redemption, reentry or repossession and (b) the benefit of any laws now or hereafter in force exempting property from liability for rent or for debt. | 97Waivers
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The Company hereby confirms its obligations under the Note Agreement, whether or not the transactions hereby contemplated are consummated, to pay, promptly after request by the holders of the Notes, all reasonable out-of-pocket costs and expenses, including attorneys’ fees and expenses, incurred by such holders in connection with this letter agreement or the transactions contemplated hereby, in enforcing any rights under this letter agreement, or in responding to any subpoena or other legal process or informal investigative demand issued in connection with this letter agreement or the transactions contemplated hereby. The obligations of the Company under this Section 5 shall survive transfer by any holder of any Note and payment of any Note. | 41Expenses
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This Amendment may not be changed, modified, or discharged in whole or in part except by an agreement in writing signed by both parties to this Amendment. | 2Amendments
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Any Loan Document may be executed in counterparts, each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement shall become effective when Agent has received counterparts bearing the signatures of all parties hereto. Delivery of a signature page of any Loan Document by telecopy or other electronic means shall be effective as delivery of a manually executed counterpart of such agreement. Any signature, contract formation or record-keeping through electronic means shall have the same legal validity and enforceability as manual or paper-based methods, to the fullest extent permitted by Applicable Law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any similar state law based on the Uniform Electronic Transactions Act. | 26Counterparts
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The Company agrees to pay or cause to be paid to Executive during the Employment Term a base salary at the annual rate of $1,150,000 or such increased amount as the Board may from time to time determine (hereinafter referred to as the “Base Salary”); provided, however, that the Base Salary may be reduced by no more than 10% in connection with an across-the-board salary reduction by the Company similarly affecting all senior executives of the Company. The Base Salary shall be payable in accordance with the Company’s customary practices applicable to its executives. Such Base Salary shall be reviewed at least annually by the Board pursuant to the Company’s normal performance review policies for senior executives. | 11Base Salary
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Payment of any amounts in accordance with this Section 15(b) shall be made in cash or, if determined by the Board or the Committee (as constituted prior to the Change in Control), in securities of the New Employer that are traded on an established United States securities market, or which will be so traded within sixty (60) days following the Change in Control, having an aggregate fair market value (as determined by such Board or Committee) equal to such amount or in a combination of such securities and cash. All amounts payable hereunder shall be payable in full, as soon as reasonably practicable, but in no event later than ten (10) business days, following the Change in Control. | 68Payments
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Purchaser is a Delaware limited partnership duly organized, validly existing, and in good standing under the Laws of the State of Delaware and has the organizational power and authority to own its property and to carry on its business as now conducted and to enter into and to carry out the terms and conditions of this Agreement and each other agreement, document, instrument or certificate contemplated by this Agreement or to be executed by Purchaser in connection with the consummation of the transactions contemplated by this Agreement (all such other agreements, documents, instruments and certificates required to be executed by Purchaser being hereinafter referred to, collectively, as the “ Purchaser Documents ”) and to perform fully its obligations hereunder and thereunder. | 66Organizations
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Buyer shall have received the financial statements referenced in Sections 12(b) and 13(a). | 43Financial Statements
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Schedule 8.12 lists (a) each Subsidiary of Holdings (and the direct and indirect ownership interest of Holdings therein) and (b) each Subsidiary of the Borrower (and the direct and indirect ownership interest of the Borrower therein), in each case existing on the Closing Date. To the knowledge of the Borrower, after due inquiry, each Immaterial Subsidiary as of the Closing Date has been so designated on Schedule 8.12 . | 83Subsidiaries
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Receipt by the Administrative Agent of (i) the consolidated audited financial statements of the Funding Date Acquired Business for the Fiscal Years ended December 31, 2014, December 31, 2015 and December 31, 2016, including balance sheets, income statements and cash flow statements audited by independent public accountants reasonably acceptable to the Administrative Agent and prepared in conformity with GAAP, (ii) pro forma consolidated financial statements of the Borrower and its Subsidiaries giving effect to the Transactions for the twelve (12) month period ended as of March 31, 2017 and (iii) a base case financial covenant model prepared by the Borrower. | 43Financial Statements
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When a reference is made in this Agreement to an Article or Section, such reference shall be to an Article or Section of this Agreement unless otherwise indicated. The table of contents to this Agreement, and the Article and Section headings contained in this Agreement, are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The term “or” is not exclusive. All terms defined in this Agreement shall have the defined meanings when used in any certificate or other document made or delivered pursuant hereto unless otherwise defined herein. The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such terms. Unless otherwise specified, any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument or statute as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes, and including all attachments thereto and instruments incorporated therein. References to a person are also to its permitted successors and assigns. | 23Construction
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Any termination of Roberts’ employment, of the Employment Period or of this Agreement (or breach of this Agreement by Altimmune or Roberts) shall have no effect on the continuing operation of this Section 7. | 85Survival
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The Company or one of its Subsidiaries may require the Employee to remit to the Company an amount in cash sufficient to satisfy any applicable U.S. federal, state and local and non-U.S. tax withholding or other similar charges or fees that may arise in connection with the grant, vesting, exercise, settlement or purchase of the Options to the extent that such withholding requirement is not satisfied by other means; provided, that if Exercise Shares are retained to satisfy such obligation, the number of Exercise Shares retained shall be effected at a rate determined by the Company that is permitted under applicable IRS withholding rules and that does not to cause adverse accounting consequences. | 99Withholdings
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In the event of a breach or threatened breach by Executive of the provisions of Section 6 of this Separation Agreement or Section 2 of the Waiver, Executive agrees that the Companies shall be entitled to a temporary restraining order or a preliminary injunction, which may be obtained by means of a judicial proceeding without the requirement of establishing irreparable injury, posting a bond and notwithstanding the provisions of Section 14(f) hereof. Executive further acknowledges that the Companies shall have no further obligation to provide any payment or benefit due to Executive or his estate, spouse or dependents under Section 3 hereof, including Section 3.3, following such breach or threatened breach. Nothing herein shall be construed as prohibiting the Companies from pursuing any other remedy available to it for such breach or threatened breach, including the recovery of damages from Executive. | 75Remedies
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If pursuant to this Section the Facilities are increased pursuant to an Incremental Facility, the Administrative Agent and the Borrower shall determine the effective date (the “ Increase Effective Date ”) and the final allocation of such Incremental Facility. | 33Effective Dates
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On and after the Effective Date, except for Liens permitted pursuant to Section 5.9 hereof, (a) there is no financing statement outstanding covering any personal property of any Company; (b) there is no mortgage outstanding covering any real property of any Company; and (c) no real or personal property of any Company is subject to any security interest or Lien of any kind. No Company has entered into any contract or agreement that exists on or after the Effective Date that would prohibit Agent or the Banks from acquiring a security interest, mortgage or other Lien on, or a collateral assignment of, any of the property or assets of any Company. | 57Liens
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The Parent Borrower will use the proceeds of the Initial Tranche B Term Loans on the Closing Date to consummate the Transactions including the payments of fees and expenses in connection with the Transactions and for working capital needs and for other general corporate purposes and for any other purpose not prohibited under the Loan Documents Fourth Amendment Effective Date as provided in Section 5.06(a) . Following the Closing Date, the Borrowers will use the proceeds of the Initial Revolving Facility and LC Issuances (i) to provide working capital to the Parent Borrower and its Subsidiaries (including to replace or provide credit support for any existing letters of credit), (ii) to provide funds for other general corporate purposes of the Parent Borrower and its Subsidiaries (including Permitted Acquisitions and Investments), (iii) to fund certain fees and expenses relating thereto, and (iv) to finance any transaction not prohibited hereby. | 92Use Of Proceeds
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Unitholders own, beneficially and of record, free and clear of any Lien the entire membership interest of Seller. | 90Titles
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Assignor hereby assigns to Assignee all of Assignor’s rights and obligations under the Underlying Agreement with respect to the Assigned Rights and Obligations. | 7Assignments
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This First Amendment may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original, but all such counterparts shall constitute one and the same instrument, and all signatures need not appear on any one counterpart. Any party hereto may execute and deliver a counterpart of this First Amendment by delivering by facsimile or email transmission a signature page of this First Amendment signed by such party, and any such facsimile or email signature shall be treated in all respects as having the same effect as an original signature. Any party delivering by facsimile or email transmission a counterpart executed by it shall promptly thereafter also deliver a manually signed counterpart of this First Amendment. | 26Counterparts
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The Borrower hereby agrees to protect, indemnify, pay and save harmless the Issuing Lender and any of its Affiliates that has issued a Letter of Credit from and against any and all claims, demands, liabilities, damages, taxes, penalties, interest, judgments, losses, costs, charges and expenses (including reasonable fees, expenses and disbursements of counsel and allocated costs of internal counsel) which the Issuing Lender or any of its Affiliates may incur or be subject to as a consequence, direct or indirect, of the issuance of any Letter of Credit, other than as a result of the gross negligence or willful misconduct of the Issuing Lender as determined by a final non-appealable judgment of a court of competent jurisdiction. | 50Indemnity
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No alteration, amendment, waiver, cancellation or any other change in any term or condition of this Agreement will be valid or binding on either party unless the same will have been mutually assented to in writing by both parties. | 60Modifications
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Whenever this Lease requires an approval, consent, determination, selection or judgment by either Landlord or Tenant, unless another standard is expressly set forth, such approval, consent, determination, selection or judgment and any conditions imposed thereby shall be reasonable and shall not be unreasonably withheld or delayed. | 5Approvals
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This Agreement, the Merger Agreement and the other Ancillary Documents to which Owner is a party or bound contain the entire agreement between Owner and the Covered Parties concerning the subject matter hereof. Notwithstanding the foregoing, the rights and remedies of the Covered Parties under this Agreement are not exclusive of or limited by any other rights or remedies which they may have, whether at law, in equity, by contract or otherwise, all of which will be cumulative (and not alternative). Without limiting the generality of the foregoing, the rights and remedies of the Covered Parties, and the obligations and liabilities of Owner, under this Agreement, are in addition to their respective rights, remedies, obligations and liabilities (i) under the laws of unfair competition, misappropriation of trade secrets, or other requirements of statutory or common law, or any applicable rules and regulations and (ii) otherwise conferred by contract, including the Merger Agreement and any other written agreement between Owner and any of the Covered Parties. Nothing in the Merger Agreement will limit any of the obligations, liabilities, rights or remedies of Owner or the Covered Parties under this Agreement, nor will any breach of the Merger Agreement or any other agreement between Owner and any of the Covered Parties limit or otherwise affect any right or remedy of the Covered Parties under this Agreement. If any term or condition of any other agreement between Owner and any of the Covered Parties conflicts or is inconsistent with the terms and conditions of this Agreement, the more restrictive terms will control as to Owner. | 52Integration
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By cash or check or other method of payment permitted under Section 4(d) of the Agreement. | 68Payments
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While Employee is employed by the Company and at all times following the termination of Employee’s employment for any reason, Employee shall not, directly or indirectly, for Employee or on behalf of, or in conjunction with, any other person, persons, company, partnership, corporation, business entity, or otherwise, make any statements that are inflammatory, detrimental, slanderous, or negative in any way to the interests of the Company or any affiliate. Nothing in this paragraph infringes on Employee’s right to participation or cooperation in any charge or investigation by the Federal Equal Employment Opportunity Commission or any comparable state agency, or any other self-regulatory organization or any other state or federal regulatory authority or making other disclosures that are produced under the whistleblower provisions of federal or state law or regulation. | 64Non-Disparagement
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The Borrower agrees to indemnify each Lender for, and to hold each Lender harmless from, any loss or expense that such Lender may sustain or incur as a consequence of (a) default by the Borrower in making a borrowing of, conversion into or continuation of Eurodollar Loans after the Company Borrower has given a notice requesting the same in accordance with the provisions of this Agreement, (b) default by the Borrower in making any prepayment of or conversion from Eurodollar Loans after the Company Borrower has given a notice thereof in accordance with the provisions of this Agreement or (c) the making of a prepayment of Eurodollar Loans on a day that is not the last day of an Interest Period with respect thereto. Such indemnification may include an amount equal to the excess, if any, of (i) the amount of interest that would have accrued on the amount so prepaid, or not so borrowed, reduced, converted or continued, for the period from the date of such prepayment or of such failure to borrow, reduce, convert or continue to the last day of such Interest Period (or, in the case of a failure to borrow, reduce, convert or continue, the Interest Period that would have commenced on the date of such failure) in each case at the applicable rate of interest or other return for such Loans provided for herein (excluding, however, the Applicable Margin included therein, if any) over (ii) the amount of interest (as reasonably determined by such Lender) that would have accrued to such Lender on such amount by placing such amount on deposit for a comparable period with leading banks in the interbank eurodollar market. A certificate as to any amounts payable pursuant to this Section submitted to the Company Borrower by any Lender shall be conclusive in the absence of manifest error. This covenant shall survive the termination of this Agreement and the payment of the Loans and all other amounts payable hereunder. | 50Indemnity
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Notwithstanding the provisions of Section 2, the Company may terminate this Agreement (a) for any reason whatsoever upon thirty (30) days’ prior written notice to Consultant, and (b) immediately upon written notice to Consultant, if any of the Services is performed or is being performed in an unsatisfactory manner, as determined by the Company in its discretion. Within five (5) days after any termination of this Agreement, Consultant shall deliver to the Company all Work Product resulting from the performance of the Services. | 88Terminations
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In the event a claim for indemnification under this Article 5 has been finally determined and the Seller is the Indemnifying Party, the amount of such final determination shall be paid by the Seller to the Indemnified Party, on demand, at the Seller’s option (which shall be delivered to the Indemnified Party in writing), by delivering (i) a wire transfer of immediately available funds and/or (ii) such number of Shares as is calculated by dividing the indemnification amount by the volume weighted average trading price of the common shares of MHI Inc. on the TSX, for the ten trading days ending on the date such claim for indemnification is finally determined, or the fair market value of the Shares, in the event the common shares of MHI Inc. are no longer listed on the TSX; provided, however, that if Seller elects to deliver Shares pursuant to (ii) above, at the request of the Indemnified Party given in writing to the Seller within five (5) Business Days following the date on which the notice above is provided by the Seller, the Seller shall sell such Shares on the TSX (or other exchange on which the Shares are trading) and the proceeds shall be paid to the Indemnified Party (in lieu of delivering the Shares) and all costs and expenses incurred by the Seller in connection with the sale of such Shares on the TSX (or such other exchange) shall be paid by the Partnership and MHI Inc. In the event a claim for indemnification under this Article 5 has been finally determined and MHI Inc. and/or the Partnership is the Indemnifying Party, the amount of such final determination shall be paid by the Indemnifying Party to the Indemnified Party, on demand by wire transfer of immediately available funds. | 68Payments
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This Agreement may be executed in two or more counterparts, each of which shall constitute an original but all of which when taken together shall constitute but one contract, and shall become effective as provided in Section 5.04 . Delivery of an executed counterpart to this Agreement by facsimile or other electronic transmission shall be as effective as delivery of a manually signed original. | 26Counterparts
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This Agreement constitutes, and the other Loan Documents to which Borrower or any other Obligated Party is a party and the Intercreditor Agreement to the extent Borrower or any other Obligated Party is party thereto, when delivered, shall constitute legal, valid, and binding obligations of such Person, enforceable against such Person in accordance with their respective terms, except as limited by Debtor Relief Laws and by general principles of equity, whether applied by a court of law or equity. | 36Enforceability
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As consideration for entering into this Agreement and for providing the Services, Company will pay Contractor at a rate described in Exhibit “A” . Contractor will be solely responsible for the payment of all taxes due on the payments made by Company to Contractor. | 42Fees
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The closing of the transaction contemplated by this Agreement (" Closing ") shall take place at the offices of Escrow Agent or at such other location as may be mutually agreed upon by Seller and Buyer, on the date that is seven (7) Calendar Days following the expiration of the Investigation Period (as the same may be extended pursuant to this Agreement or by mutual written agreement of the parties, the " Closing Date "). | 18Closings
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This Agreement shall be governed by and interpreted and construed according to the laws of the State of Illinois. The parties hereby consent to the jurisdiction of the state and federal courts in the State of Illinois in the event that any disputes arise under this Agreement. | 56Jurisdictions
|
EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AMENDMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION. | 96Waiver Of Jury Trials
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All notices , demands and requests required by this Employment Agre e ment shall be in writing and shall be deemed to have been given or made for all purposes (i) upon personal delivery , (ii) one day after being sent, when sent by professional overnight courier service , (iii) five days after posting when sent by registered or certified mail , or (iv) on the date of transmissi o n when sent by telegraph , telegram , telex , or other form of " hard copy " transmission , to either party hereto at the address set forth below or at such other address as e ither party may designate by notice pursuant to this Section 6 . | 65Notices
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Neither Tenant nor Guarantor has (i) made a general assignment for the benefit of creditors, (ii) filed any voluntary petition in bankruptcy or suffered the filing of an involuntary petition by any creditors, (iii) suffered the appointment of a receiver to take possession of all or substantially all of its assets, (iv) suffered the attachment or other judicial seizure of all or substantially all of its assets, (v) admitted in writing its inability to pay its debts as they come due, or (vi) made an offer of settlement, extension or composition to its creditors generally. | 80Solvency
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Except as otherwise provided in this Agreement and subject to the Participant’s continuous service with the Company or a Subsidiary, the RSUs will vest in three (3) equal installments on each of the first, second and third anniversaries of the Date of Grant (each twelve (12) month period during which vesting restrictions apply is the “Annual Restricted Period” and the three (3) year period in the aggregate is the “Restricted Period”). | 95Vesting
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Any term or provision of this Agreement that is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability and shall not render invalid or unenforceable the remaining terms and provisions of this Agreement or affect the validity or enforceability of any of the terms or provisions of this Agreement in any other jurisdiction. If any provision of this Agreement is so broad as to be unenforceable, the provision shall be interpreted to be only so broad as is enforceable. | 79Severability
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This Release will be construed and enforced in accordance with the laws of the State of Delaware without regard to the principles of conflicts of law. If any provision of this Release is held by a court of competent jurisdiction to be illegal, void or unenforceable, such provision shall have no effect; however, the remaining provisions will be enforced to the maximum extent possible. The parties acknowledge and agree that, except as otherwise set forth herein, this Release constitutes the entire agreement and complete understanding of the parties with regard to the matters set forth herein and, except as otherwise set forth in this Release, supersedes any and all agreements (including without limitation the Employment Agreement), understandings, and discussions, whether written or oral, between the parties. No other promises or agreements are binding unless in writing and signed by each of the Parties after the Release Effective Date (as defined below). Should any provision of this Release require interpretation or construction, it is agreed by the Parties that the entity interpreting or constructing this Release shall not apply a presumption against one party by reason of the rule of construction that a document is to be construed more strictly against the Party who prepared the document. The Parties agree to bear their own attorneys’ fees and costs with respect to this Release. | 59Miscellaneous
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Executive shall be entitled to four (4) weeks of paid vacation during each calendar year and time off for all holidays as designated by the Employer. | 93Vacations
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The Company has all requisite authority and corporate power, governmental licenses, authorizations, consents and approvals to enter into this Agreement and each of the Transaction Documents to which the Company is a party, to consummate the transactions contemplated by this Agreement and each of the Transaction Documents to which the Company is a party, to perform its obligations under this Agreement and each of the Transaction Documents to which the Company is a party, and to record the transfer of the Shares and the delivery of the new certificates representing the Shares registered in the name of the Acquiror Company. The execution, delivery and performance by the Company of this Agreement and each of the Transaction Documents to which the Company is a party have been duly authorized by all necessary corporate action and do not require from the Company Board or the Shareholders any consent or approval that has not been validly and lawfully obtained. The execution, delivery and performance by the Company of this Agreement and each of the Transaction Documents to which the Company is a party requires no authorization, consent, approval, license, exemption of or filing or registration with any Governmental Authority. | 10Authorizations
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The rights and obligations of the parties under this Agreement, which by their nature would continue beyond the termination of Executive’s employment, shall survive the termination of Executive’s employment or expiration of this Agreement. | 85Survival
|
In the event that a Participant’s Employment with the Company is terminated due to the Participant’s Disability, such Participant’s unvested portion of the Deferral Award shall immediately vest (in which case, the date of the Participant’s termination due to Disability shall be referred to as the “ Vesting Date ” for such portion of the Deferral Award) and be delivered to the Participant in accordance with Article V. | 30Disability
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Each Purchaser covenants that neither it nor any Affiliate acting on its behalf or pursuant to any understanding with it will execute any purchases or sales, including Short Sales of any of the Company’s securities during the period commencing with the execution of this Agreement and ending at the Closing of the transaction contemplated by this Agreement. Each Purchaser also covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company, such Purchaser will maintain the confidentiality of the existence and terms of this transaction. | 20Confidentiality
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Subject to Article “24” of this Note, each Party to this Note shall bear and pay its own costs and expenses incurred in connection with the execution and delivery of this Note. | 41Expenses
|
This Agreement, including the documents and instruments referred to herein, constitute the entire agreement among the parties hereto relating to the subject matter hereof, and all prior agreements, correspondence, discussions and understandings of the parties are merged herein and made a part hereof, it being the intention of the parties hereto that this Agreement shall serve as the complete and exclusive statement of the terms of the agreement among the parties. | 38Entire Agreements
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